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Full text of "Constitutional rights of children"

5-Z 



95th Congress I COMMITTEE PRINT 

2d Session J 




JAN?" 1979 
CONSTITUTIONAL RIGHTjI^dF CHILDREN 



V 



Prepared for the 
SUBCOMMITTEE ON THE CONSTITUTION 

OF THE 

COMMITTEE ON THE JUDICIARY 
UNITED STATES SENATE 

BY THE 

AMERICAN LAW DIVISION 
CONGRESSIONAL RESEARCH SERVICE 

OF THE 

LIBRARY OF CONGRESS 




Printed for the use of the Committee on the Judiciary 



35-352 



U.S. GOVERNMENT PRINTING OFFICE 
WASHINGTON : 1978 



For sale by the Superintendent of Documents, U.S. Government Printing Office 
Washington, D.C. 20402 



COMMITTEE ON THE JUDICIARY 

[95th Congress] 
JAMES O. EASTLAND, Mississippi, Chairman 

EDWARD M. KENNEDY, Massachusetts STROM THURMOND, South CaroUna 

BIRCH BAYH, Indiana CHARLES McC. MATHIAS, Jr., Maryland 

ROBERT C. BYRD, West Virginia WILLIAM L. SCOTT, Virginia 

JAMES ABOUREZK, South Dakota PAUL LAXALT, Nevada 

JAMES B. ALLEN, Alabama i ORRIN G. HATCH, Utah 

JOSEPH R. BIDEN, JR , Delaware MALCOLM WALLOP, Wyoming 

JOHN C. CULVER, Iowa 

HOWARD M. METZENBAUM, Ohio 

DENNIS DeCONCINI, Arizona 

PAUL HATFIELD, Montana 

MARYON ALLEN, Alabama 2 

FRA^•CIS C. RoSENBERGER, Chief Counsel and Staff Director 



Subcommittee on the Constitution 
BIRCH BAYH, Indiana, Chairman 

HOWARD M. METZENBAUM, Ohio WILLIAM L. SCOTT, Virginia 

JAMES B. ALLEN, Alabama i ORRIN G. HATCH, Utah 

JAMES ABOUREZK, South Dakota 
MARYON ALLEN, Alabama 2 

Nels Ackerson, Chief Counsel and Executive Director 

Mary K. Jolly, Staff Director 

Kevin O. Faley, General Counsel 

Linda Rogers-Kingsbury, Chief Clerk 



1 Senator James B. AUen died on Jime 1, 1978, while serving on the Committee on the Judiciary. 

2 Senator Maryon Allen was appointed to her husband's scat on Jvme 9, 1978, and became the first woman 
appointed to the Committee on the Judiciary since its estabhshment on December 13, 1816. She also became 
the first woman to chair a Subcommittee of the Judiciary Committee— the Subcommittee on the Separation 
of Powers. 

(II) 



CONTENTS 



Tase 

I. Foreword by Hon. Birch Bayh, chairman, Subcommittee on the 

Constitution v 

II. Summary of paper ix 

III. Introduction 1 

IV. The legal tradition f"3 

V. The constitutional primacy of the parent t5 

VI. Constitutional rights of children i. 8 

A. Juvenile delinquency process 8 

B. The speech and press rights of children 10 

C. Due process rights of students facing discipline 12 

D. Constitutional conflict: parents and State 14 

VII. The future of children's constitutional rights 17 

VIII. Conclusion 21 

IX. Appendixes 2S 

(III) 



Digitized by the Internet Archive 
in 2013 



http://archive.org/details/constitutionalriOOIibr 



FOREWORD 

During my seven years as chairman of the Senate Jutliciaiy Sub- 
committee to Investi^^^ate Juvenile Dehnquency and presently as 
chairman of the Subcommittee on the Constitution, there has been 
a growing demand for an overview of the constitutional rights of 
children. 

This overview, completed by the Library of Congress, is not a 
comprehensive treatise on the constitutional law relating to children 
nor should it be considered an exhaustive analysis of constitutional 
controversies. Rather, it attempts to provide the reader with a review 
of a series of recent Supreme Court decisions that have defined pro- 
tections that are afforded to children by the Constitution. This review 
is with regard to particular rights and not a discussion of general terms. 

The Library of Congress' first responsibility is service to Congress. 
Over the years the range of services has come to include the entire 
governmental establishment in all its branches and the public at 
large, so that it has become a national library for the United States. 
The Subcommittee gratefully acknowledges the contribution of Daniel 
J. Boorstin, Librarian, Library of CongTess and Gilbert Gude, Director 
of the Congressional Research Service. Special acknowledgement is 
deserved by Johnny H. Killian, Assistant Chief of the American Law 
Division, of the Library of Congress, in recognition of his exceptional 
work, valuable assistance, and precise legal research in preparing this 
overview of the constitutional rights of children. 

The Constitution of 1789 has served as the fundamental instrument 
of our Government for almost all of our country's history as an inde- 
pendent nation. The Constitution has proved a durable and viable 
instrument of government despite enormous changes in America's 
political, social, and economic environment. The framework for demo- 
cratic government set out in the Constitution in 1789 has remained 
workable and progressive today. However, that children should be 
protecteil by the Constitution, and in particular the Bill of Rights, 
is a new frontier of social, philosophical, and legal thought. The aim of 
the children's rights movement is not to let children exclusively 
determine their own destiny; adults must ultimately be responsible. 
Rather, those of us who support this movement hope to establish 
that a child has the right to a safe home; to be supported; to adequate 
nutrition and medical care; to a reasonable education; to freedom 
from abuse and neglect; to treatment when institutionalized; to due 
process of law; to equal protection of the law^s; and to privacy. 

Ten years ago, the Supreme Court declared that children are 
''persons" under the Constitution and that the Bill of Rights is not 
for adults alone. The 1960's and 1970's saw unusual activity in the 
Supreme Court in the area of children's rights. Legal questions 
brought to the attention of the Supreme Court had a profound impact 
on the cultural and political norms of our country. 

(V) 



VI 

The Supreme Court, however, has not been alone in providing the 
opportunity for children and young people to claim numerous Federal 
and State rights. A large step was taken by the 26th Amendment to 
the Constitution of the United States, which I am proud to have 
introduced. That amendment lowered the voting age to 18 years. 
The States responded, generally, in kind by lowering voting and other 
age standards. 

We in Congress have forged ahead in the area of civil rights and 
women's rio;hts. Yet, we have still not secured the fundamental rights 
of institutionalized persons, especially children. Whether they be 
mentally ill, retarded, chronically disabled, or incarcerated in private 
and public detention or correctional facilities, our responsibility is to 
see that they too are guaranteed the constitutional protection that all 
citizens of this country are entitled. These have not yet been available. 
This is the last great frontier of civil rights legislation. Congress should 
move swiftly to enact the ''Civil Eights of Institutionalized Persons'* 
bill, which will be a step in the direction of protecting the fundamental 
constitutional rights of institutionalized children. 

We also must not lose sight of the conditions of the billions of 
children in other countries. In this regard, I want to take the oppor- 
tunity to note that we as a nation will soon celebrate the twentieth 
anniversar}^ of the 1959 United Nations Declaration of the Rights 
of the Child. {See Appendix 1.) On December 21, 1976, the General 
Assembly of the United Nations passed a Resolution declaring 1979 
the International Year of the Child. The United Nations, by placing 
the child in the center of world attention, invites the world community 
to renew and reaffirm its concern for the present condition and the 
future of its children. 

The rights and problems of the child are in many instances in- 
timately related to the family. However, children have distinct needs 
and deserve distinct attention. I am especially pleased that the Inter- 
national Year of the Child Activities sponsored by the Federal Govern- 
ment will focus specifically on the child as an individual rather than 
as an appendage of others. Yet, I also want to emphasize that the 
United States participation in the Year of the Child is not just an 
endeavor of the Federal Government alone. Over 200 national volun- 
taiy labor, industrial, civic, professional, and local groups within the 
United States have endorsed the International Year of the Child and 
have requested to work with the United States National Commission 
during the Year. {See Appendix 2.) 

Jean Child s Young has been appointed by President Carter {see 
Appendix o) to be the chairwoman of the 24-member United States 
Commission for the International Year of the Child in 1979. {See 
Appendix 4.) She not only encourages the Commission to highlight 
positive contributions young people make to society, but she urges 
that its members emphasize the need to deal more effectively with 
problems such as discrimination against children because of age, race 
and sex; child abuse; violence and drug use among people; and sub- 
standard education. Her commission will report its findings and recom- 
mendations to the White House by March 1980. In the meantime the 
group intends to act as a catalyst, encouraging others to develop and 
fund programs to help children. 



VII 

In observance of the International Year of the Child, the Depart- 
ment of Justice Office of Juvenile Justice and Delinquency Prevention 
established under my Juvenile Justice and Dehnquency Prevention 
Act of 1974, has funded a program with the Department of State to 
undertake an international study of the rights of children. The Office 
of Juvenile Justice has a particular interest in improving and protect- 
ing the rights of children. The Office will focus on four issues in the 
coming year: children and youth in custody; children and youth 
as victims of violence; the effects of advertising and programming on 
violence and drug use among youth; and, the general exploitation of 
our children and youth. {See Appendix 5.) 

I am proud to be associated with the children's rights movement. 
The Juvenile Justice Act announced to the youth of our country that 
they have an advocate in the Federal Government for their constitu- 
tional, legal, and human rights. We must never lose sight of the prin- 
ciple that when the rights of one are suppressed, the freedoms of all 
are jeopardized. 

I sincerely hope that this report will be widely disseminated and 
read throughout the United States and in other parts of the world as 
well during the International Year of the Child in 1979. I invite 
articles from interested scholars and spokespersons for the rights of 
the child, both nationally and internationally, in response not only to 
this report, but also to issues raised in the United Nations' Declaration 
of the Rights of the Child. It is my hope that these articles will be 
reviewed during 1979 and published during 1980 as a result of the 
Subcommittee on the Constitution's Oversight of the Constitutional 



Riofhts of Children. 



"■tr} 



December 22, 1978 



Birch Bayh. 

Chairman, Subcommittee on the Constitution. 



SUMMARY OF PAPER 

The expansion of constitutional liberties achieved through judicial 
action in the 1960's and 1970's did not stop with the rights of adultsi 
Children were held protected to some degree by the Constitution as 
well. Determination of what that degree is, however, is complicated 
by a line of Supreme Court cases holding that the interests of parents 
in guiding and directing their minor children are themselves protected 
by the Constitution. The cases so far decided involving claimed rights 
of children have for the most part not dealt with the conflict between 
parents and children in assertions of claimed rights but rather have 
turned upon the power of government to do certain things in certain 
ways to and with children. Thus, a series of cases has circumscribed 
governmental authority to act without observance of procedural 
regularity in juvenile delinquency proceedings and it seems clear 
that children in these circumstances enjoy considerable due process 
protection. With respect to the rights of students, they have been 
held to enjoy substantial rights of speech and press, at least until 
they reach the boundaries of disturbance of the educational process. 
What procedural protections students enjoy in terms of disciplinary 
actions by school authorities cannot be stated with any certainty; 
a landmark decision holding that ''rudimentary" due process attaches 
may have now been undermined. The beginnings of an approach 
to parent-child confhcts is evident in cases dealing with parental- 
consent-to-abortion requirements and the access of minors to con- 
traceptives and in a pending case that asks whether minors who are 
being institutionalized by their parents have any due process protec- 
tions. It is concluded that no overall constitutional challenge to the 
treatment of children as a special class is likely to succeed but that 
it is likely that a case-by-case approach is likely to see children ac- 
corded additional rights consistent with the recognition that they do 
in fact lack the full capacity of adults. 

(IX) 



34-352—78- 



CONSTITUTIONAL RIGHTS OF CHILDREN: 
AN OVERVIEW 

Introduction 

During the 1960's there developed in the United States a variety 
of social trends that taken together constituted a rejection of settled 
and traditional ways of viewing social relationships. This develop- 
ment has had wide ramifications, including the altering of consti- 
tutional doctrine. Beginning with the School Desegregation Decision ^ 
in 1954 the Supreme Court moved, at first haltingly, and then in 
impressively sweeping terms, to implement a substantive view of the 
equal protection clause of the Fourteenth Amendment. While the 
Brown decision represented but a modest extension of the intent of 
the framers and ratifiers of the Amendment and but little if any 
extension of the constitutional language itself,^ subsequent decisions 
are more problematical in these respects. Substantive equal protection ^ 
was developed by the Court into the suspect classification — funda- 
mental interest branch of the equal protection doctrine and through 
it the Justices required the reapportionment of the legislatures of all 
50 States and of all legislative bodies having general governmental 
powers in the subunits of State governments, the redistricting in every 
State having more than one U.S. Representative of the congressional 
districts, and the opening up to both many hitherto excluded persons 
and movements of access to the political arena both as voters and as 
candidates. 

Wealth classifications, which were largely de facto, in the criminal 
law field were voided and a vaguely defined but potent rii^ht to travel 
doctrine upset numerous restrictions on newly-arrived citizens. More- 
over, members of groups that had traditionally been disfavored in 
legal classifications began to assert claimed rights and in decision 
after decision were accorded doctrinal protection by bein^ made the 
recipient of a suspect classification designation under which govern- 
mental restrictions had to be justified by compelling interests which 
in practice meant they could not be justified at all. Race was the para- 
digmatic suspect classification but nationality and alienage soon fol- 
lowed and gender and illegitimacy classifications have more recently 
been granted positions requiring somewhat less strict judicial scrutiny 
but nonetheless entitled to substantial judicial protection.^ 

1 Brown v. Board of Education, 347 U.S. 483 (1954). 

2 These propositions have recently been strongly attacked in R. Berger, Government by Judiciary— The 
Transformation of the Fourteenth Amendment (19^7), but evaluation of the argument is beyond the scope of 
this paper. 

3 The phrase was originated in the classic article of Tussman & tenBroek, "The Equal Protection of the 
Laws," .37 Calif. L. Rev 341. 3»)l-3a5 (1919). Its present currency was established in Karst & Horowitz, 
"Reitman v. Mulkey: A Telophase of Substantive Equal Protection," 1967 Sup. Ct. Rev. 39. 

* Documentation of these statements would overlengthen this paper but see The Constitution of the United 
States of America— Analysis and Interpretation, (hereinafter Constitution Annotated) Senate Document No. 
92-82 (1972), 1470-1477, 1493-1.527, and Senate Docimient No. 94-200 (1976 Supp.), S1.56-S182. In the last Term, 
the Coiut solidified its position with respect to gender and illegitimacy. See Craig v. Boren, 420 U.S. 190 
(197ti), and Califano v. Golifarb, 430 U.S. 199 (1977) (gender): Trimble v, Gordon, 430 U.S. 763 (1977) (illegit- 
imacy). For a largely successful effort to conceptualize the judicial formulation of doctrine, see L. Tribe, 
American Constitutional Law (1978), ch. 16. 

(1) 



Simultaneously, the Supreme Court utilized the due process 
clauses of the Fifth and Fourteenth Amendments to require of 
governmental dealings with people the observance of a fairly high 
standard of procedural regularity before individuals may be disad- 
vantaged. Here, again, traditionally disfavored groups, prisoners, 
involuntary inmates of institutions, welfare recipients, for example, 
were the beneficiaries of a judicial mave to expand the circumstances 
under which due process had to be observed, primarily through the 
vitiation of the ''right-privilege" distinction and the formulation of 
an ''entitlements" doctrine under which State-fostered and justifiable 
expectations were accorded protection. Under the conjunction of the 
two elements, welfare recipients were thus to be accorded hearings 
before they were deprived of assistance and prisoners were afforded a 
somewhat truncated hearing before the imposition of disciplinary 
penalties.^ But, more important in some respects, the Court in more 
recent years has resurrected the formerly discredited doctrine of 
substantive due process that imposes not procedural regularity upon 
government but rather barriers to governmental action at all. The 
doctrine was originally developed to protect property rights against 
governmental regulation but it is now employed in the protection of 
certain personal rights, the parameters of which remain undefined, 
characterized in the group as basically familial but which gives some 
indication of spreading to a more general personal interest in privacy.® 
Both elements of due process have had their applications to children. 

A third strand deserving of mention was the primacy accorded the 
First Amendment guarantees of speech and press by the Supreme 
Court during the 1960's. No attempt will be made here to characterize 
the case law but it must be noted that this line of cases had an in- 
evitable effect upon decisionmaking with respect to children, especially 
in the educational context. 

Any effort to delineate the cause and effect relationship between the 
social conditions of the decade of the 1960's and the judicial decisions 
briefly alluded to here would be complex and perhaps frustrating. 
What is important for our purposes is that for whatever reason and in 
whatever causative context, children began to assert claims of rights 
and these assertions were largely successful in the courts; moreover, 
there developed a school of thought that would have accorded to 
children rights largely equivalent to adult rights, that in effect and 
sometimes expressly denied the separate and unique status of child- 
hood.^ That school of thought has had no observable effect in the 
courts and little likelihood exists of its judicial acceptance. But the 
children's rights cases in themselves raise interesting issues respecting 



5 Covstitution Annotated, op. cit., n. 4, 1429-1439, 1454-1455, and (Supp.), S136-S144, S149-S150. And see 
L. Triho, op. cit., n. 4, 501-522. 

« Omstituthn Annotated, op. cit., n. 4. 1310-1335, 1403-1400, and (supp.), 8120-8130; L. Tribe, op. cit., 
n. 421-4.55, 880-990. For the roootit manifestations, see Moore v. City of Cleveland, 431 U.S. 494 (1977) (sanc- 
tity of family); Zablocki v. Redhail, 98 8. Ct. 673 (1978) (marriape); IVhalen v. Roe, 429 U.S. 589 (1977) 
(intimations of protected privacy rights acainst governmental dis.semination of personal information). 
But see Paul v. Davis, 124 U.S. 093 (1970). The most well known of the recent substantive due process de- 
cisions are of course the abortion causes. Roe v. Wade, 410 U.S. 113 (1973); Doe v. Bolton, 410 U.S. 179 (1973). 

7 E.g., R. Farson, Birthrigtits (1974); J. Holt, Escape from Childtiood (1974). Farson considers ciiildren as 
"powerless, dominated, ignored, invisible." His thesis is: "The move for children's rigiits comes across from 
the realizatjoa on the part of lawyers and Judges, psychiatrists and educators, social workers and political 
reformers, parents and children that fre(>dom and democracy are not the riglits of adults only. Concerned 
poo[)le in every institution are becoming aware of the heavy reliance on power and authority by which 
adults impose excessive and arbitrary controls on children. In the developing consciousness of a civilization 
which has for foiu" hundred years gradually excluded children from the world of adults there is the dawning 
recognition that children mu.st have the right to full participation in society, that they must be valued for 
themselves, not just as potential adults." Id., 2-3. liut .see contra, Hafen, "Children's Liberation and New 
Egalitarianism: Some Reservations About Abandoning Youth to Their 'Rights,' " 3 Brig. Young U.L. 
Rev. 605 (1976). 



the status of childhood and the traditional role of parental autonomy 
insofar as children are concerned. 

This paper attempts a very modest overview of the judicial develop- 
ments of the past decade-and-a-half, a short look ahead, and a brief 
speculative raising of questions about the continued state of parent- 
child-governmental relationship. 

The Legal Tradition 

"The existing generation is master both of the training and the entire 
experience of the generation to come." ^ When he uttered these words 
more than a century ago John Stuart Mill thought the expression both 
true and proper and so it was. The classic liberal thinkers provided 
the principles for alleviating the repressed social conditions of the 
slave, the serf, the woman, for, in effect, assertion of individualism and 
equality of opportunity. But children were not to be included within 
these principles. Sir Henry Maine was sure that ''they do not possess 
the faculty of forming a judgment on their own interests; in other 
words . . . the}^ are wanting in the first essential of an engagement 
b}^ Contract." ^ And John Locke was clear that the limited capacity 
of children necessarily excluded minors from participation in the social 
contract. ''Children . . . are not born in this state of equality, though 
they are born to it." ^Uthough Ado.m was "created" as a mature person, 
"capable from the first instant of his being to provide for his own sup- 
port and preservation . . . and govern his actions according to the 
dictates of the law of reason," children lacked a "capacity of knowing 
that law." Parents were therfore under an obligation of nature to 
nourish and educate their children to help them attain a mature and 
rational capacity, "till [their] understanding be fit to take the govern- 
ment of [their] will." "And thus we see how natural freedom and sub- 
jection to parents may consist together and are both founded on the 
same principle." ^^ 

There is of course no unalterable legal boundary between childhood 
and adulthood. In different societies and at different times, young 
people have been accepted into adult society at different ages and 
children have been variously viewed," and law has differently reg- 
ulated familial relations at different times. One writer hus noted the 
changing from the early colonial days of this country to the present 
of the legal regulation of the assumption by the child of an adult 
economic role.^- Thus, from the early days till near the end of the 19th 
century, the economic needs of communities and families in America 
necessitated early entry of children into the work force. At first, these 
children were closely restrained by law and custom, whether they 
lived at home or in an apprentice system in a master's home, and they 
worked not for their own account but for the account of family or 
master. Gradually, the law imposed upon parents some regard and 

8 J. Mill, On Liberty (D. Spitz ed. 1975), 77. Excepting children from the operation of the libertarian princi- 
ple, Mill said: "It is, perhaps, hardly necessary to say that this doctrine is meant to apply only to human 
beings in the maturity of their faculties. We are not speaking of children or of young persons below the age 
which the law may fix as that of manhood or womanhood. Those who are still in a state to require being taken 
care of by others must be protected against their own action as well as against external injury. . . . Liberty, 
as a principle, has no apphcation to any state of things anterior to the time when mankind have become capa- 
ble of being improved by free and equal discussion." Id., 13-14. 

8 H. Maine, Ancient Law (1st Amer. ed. 1870), 163-164. 

" J. Locke, The Second Treatise of Government, (P. Laslett ed., Two Treatises of Government, 1967) 

" E.g., P. Aries. Centuries of Childhood (1962). 

12 Marks, "Detours on the Road to Maturity: A View of the Legal Conception of Growi 
Go," 39 L. & Contemp. Prob. 78 (1975). 



consideration for the child's welfare, especially the obligation to pre- 
pare him for assumption of full adult responsibilities. But in the post- 
Civil War industrialization and the social dislocation accompanying 
it social custom and supporting law shifted to a greater requirement 
of retention of parental control over children for a longer period and 
to greater protection of family life. Three major institutional changes 
were legislative y implemented, the juvenile court system, the pro- 
hibition of child labor, and compulsory education, all looking to- 
ward ''external support of the family as the ideal way additionally 
to prepare children to face life. . . : bolster the family, leave even 
the delinquent child in the family — where possible, shield the child 
from adult roles and responsibilities, and formally educate him, and 
upward movement could be expected." ^^ 

The result was an ''extension of childhood," with the State "en- 
joining longer supervision, more protracted education, and the post- 
poned assumption of adult economic roles." ^* The writer notes some 
elements of a reversal of the trend in the second half of this century 
in the context of the middle and late adolescent in particular. The wan- 
ing of parental immunity from a personal tort action brought by an 
imemancipated child is one example and another is the passage by 
many States of medical emancipation laws by which minors are en- 
abled to receive medical treatment without parental consent. ^^ These 
changes si2;nificantly have had some parallels in constitutional litiga- 
tion and will be noted infra. But it is important to note that they reflect 
changes of degree, altering of the age limits at which the child for some 
matters is deemed to have the capacity to make informed judgments of 
his o^^^l, and do not constitute the more radical development of denial 
of childhood as a separate status. 

Concomitant with the increased emphasis upon family control and 
responsibility, common law judges viewed parental rights "as a key 
concept, not only for the specific purposes of domestic relations law, 
but as a fundamental cultural assumption about the family as a basic 
social, economic, and political unit. For this reason, both English and 
American judges view the origins of parental rights as being even more 
fundamental than property rights." ^^ Parental power has been deemed 
primary, prevailing over the claims of the State, other outsiders, and 
the children themselves, unless there is some compelling justification 
for interference. The primary compelling justification is the protection 
of children from parental neglect, abuse, or abandonment; statutes 
proscribing various forms of parental misconduct are found in every 
State. ^'' The j)ower of government to protect children by removing 
them from parental custody has roots deep in American history; by 
the parens j^atriae doctrine, equity courts early in the 19th century 
assumed the power to remove a child from parental custody and to ap- 
point a suitable person to act as guardian.^** The role of the State then 

>» Id., sr.. 

" M., HH. 

" Id , 88-92. On parental tort imTminity, see "Child v. Parent: Erosion of the Immunity Rule," 10 Hast. 
L. J. 201 (19(i7) With res[)oct to parental consent, see T. II. b. Jones, 42,') F. Supp. 873 (D. Utah, 1975) (state 
requiromont of family consont before minor may receive birth control information inider AFDC invalid 
under both Social Security Act and Constitution), aff'd 425 U.S. 980 (1970) (passing on Social Security Act 
conclusion only). 

'•Ilafcii, op. <it., n. 7, 01.^-010. 

" Katz, Howe A: McGrath, "Child Neglect Laws in America," 9 Family L. Q. 1 (1075). 

>' Mnookin, "Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy," 39 L. <fe 
Contcmp. Prob. 220, 210 (1975). Sec, e.R , 2 J Story, Commentaries on KqxLity JuTisprudcnce (7th ed. 1857), 702. 
On the related doctrine of in loo imreutiH which pives Rovcrnment the authority and the responsibility of the 
parent duri MR the time in which tlie child is in its care, as in, e.g., the schools, see Goldstein, "The Scope and 
Sources of School Board Authority to Regulate Student Conduct and Status: A Nonconstitutional Analy- 
sis," U7 U. Pa. L. Rev. 373, 377-384 (1969). 



was supplementary to that of the parents and supportive until there 
arose evidence of abuse of parental responsibility. 

The Constitutional Primacy of the Parent 

Starting point for an assessment of the constitutional rights of 
children must be, in light of the American tradition summarized above, 
with the constitutional rights of parents. A series of Supreme Court 
decisions appears in a number of contexts to accord primacy to pa- 
rental rights vis-a-vis the power of the State to intervene in non-abuse 
situations to reorder or to deflect parental choice in child rearing. Ex- 
clusion of the State, however, does not, except to the extent that ju- 
dicial rhetoric is suggestive, dispose of the issue of the conflict between 
parent and child; only recently has the Court addressed this conflict 
and its efforts at resolution are at best tentative. 

In Meyer v. Nebraska,^^ the Court struck down a State law for- 
bidding the teaching in any school in the State, public or private, of 
any modem foreign language, other than English, to any child who 
had not successfully finished the eighth grade; in Pierce v. Society of 
Sifters, ^^ it declared unconstitutional a State law which required public 
school education of children aged eight to sixteen. Although both 
cases involved property rights which the Court deemed to be protected, 
those persons adversely affected in their property interests were per- 
mitted to represent the interests of parents and children in the as- 
sertion of other aspects of ''liberty" of which they could not be denied.^^ 
The right of parents to have their children instructed in a foreign 
language, the Court said in Meyer, was ''within the liberty of the 
Fourteenth Amendment." Expressly noting the theory discussed in 
Plato's Republic in which family life would be replaced entirely by 
State child-rearing activities so pervasive that "no parent is to know 
his own child, nor any child his parent", the Court set its face against 
such a system. ^^ 

Although such measures have been deUberately approved by men of great 
genius, their ideas touching the relation between individual and State were wholly 
different from those upon which our institutions rest; and it hardlj'- will be af- 
firmed that any legislature could impose such restrictions upon the people of a 
State without doing violence to both letter and spirit of the Constitution. 

Meyer was followed hj Pierce with the Court concluding that the 
statute "unreasonably mterferes with the liberty of parents and 
guardians to direct the upbringing and education of children under 
their control." This followed because "[t]he child is not the mere crea- 
ture of the State ; those who nurture him and direct his destiny have 
the right, coupled with the high duty, to recognize and prepare him 
for additional obligations." ^^ 

While economic due process did not survive the "revolution of the 
1930's" in constitutional law, Meyer and Pierce have not only survived 

" 262 U.S. 390 (1923). 

20 268 U.S. 510 (1925). 

21 The "liberty" is that interest which the Fourteenth Amendment guarantees against 
state deprivation "without due process of law". The line of cases of which Meyer and 
Pierce are part do not mandate the observance of certain procedures to be followed in 
falsing awaj' interests but preclude altogether the deprivation. See supra n. 6. "Without 
doubt," Justice McKeyuolds said in Meyer, liberty "denotes not merely freedom from 
bodily restraint but also the right to the individual to contract, to engage in any of the 
common occupations of life, to acquire useful knowledge, to marry, establish a home and 
bring up children, to worship God according to the dictates of his own conscience, and 
generally to enjoy those privileges long recognized at common law as essential to the 
orderly pursuit of happiness by free men.' Id., 262 U.S., 399. 

22 Id., 401-402. 

2» Id., 268 U.S., 534-53.5. 



but have been extended; additionally, other strands of constitutional 
doctrine have come together to enforce them. Thus, in West Virginia 
State Bd. of Educ. v. Barnette,^^ the Court struck down as a free speech 
violation the compulsion of school children to salute the flag; but 
insofar as the opinion of the Court pennits a judgment it was the free 
speech rights of the parents which were being protected.^^ And in 
Wisconsin v. Yoder,^^ the Court combined parental rights and religious 
freedom into a powerful barrier against enforcement of compulsory 
attendance laws to require Amish children to be sent to public schools 
after they graduated from the eighth grade but before they turned 
sixteen. ^^ 

[I]t seems clear that if the State is empowered, as parens patriae, to "save" a 
child from himself or his Amish parents by requiring an additional two years of 
compulsory formal high school education, the State will in large measure influence, 
if not determine, the religious future of the child. . . . [T]his case involves the 
fundamental interest of parents as contrasted with that of the State, to guide 
the religious future and education of their children. The historj' and culture of 
Western civilization reflect a strong tradition of parental concern for the nurture 
and upbringing of their children. This primary rule of the parents in the up- 
bringing of their children is now established beyond debate as an enduring 
American tradition. 

* * * « A « * 

[T]he court's holding in Pierce stands as a charter of the right of parents to 
direct the religious upbringing of their children. And, when the interests of parent- 
hood are combined with a free exercise claim of the natuto revealed by this record, 
more than merely a "reasonable relation to some purpose within the competency 
of the State" is required to sustain the validity of the State's requirement under 
the First Amendment. 

For the first time in a parental rights case, someone raised the 
question of the rights of the children involved in the case. Justice 
Douglas protested that the desires of the children might not coincide 
with those of the parents and the rights of the children should be 
protected.^^ 

On this important and vital matter of education, I think the children should 
be entitled to be heaid. While the parents, absent dissent, normally speak for 
the entire family, the education of the child is a matter on which the child will 
often have decided views. ... It is the future of the student, not the future of 
the parents, that is imperiled in today's decision. If a parent keeps his child out 
of school beyond the grade school, then the child will be forever barred from 
entry into the new and amazing world of diversity that we have today. . . . It is 
the student's judgment, not his parents', that is essential if we are to give full 
meaning to what we have said about the Bill of Rights and of the right of students 
to be masters of their own destiny. 

Chief Justice Burger for the Court responded that nothing in the 
record indicated a divergence between parents and children and ob- 
served that it was the interests of the parents that were being protected 



2< 319 U.S. 624 (1943). 

^ While the Court did not identify the persons whose ri.c:hts had been invaded the suit 
had been brought by the parents for themselves, not In behalf of the children, coinplalniug 
that the salute requirements restricted the "liberty of the parents' choice and direction in 
the upbringing of their children." Record at 11, West Virginia State Bd of Educ. v. 
Bamette, supra. .Justice Frankfurter, dissenting, framed the issue as a conflict betAveen 
the parents and the State. Id., 657. But note that In Tinker v. Des Moines Ind. Communitj/ 
School Uist., ;^.31) U.S. 5():i, 50G-507 (15)69), the court viewed Bamette as having been 
about the children's First Amendment rights. For a suggestion that Tinker too is really 
about the rights of parents, see Burt. "Developing Constitutional Rights of, in, and for 
Children," .39 L. & Contemp. Prob. 118, 122-124 (1975). 
ae406 U.S. 205 (1972). 
27 Id., 232-233. 
« Id., 244-245 (dissenting in part). 



because the parents were subject to criminal prosecution under the 
attendance laws. But the Court did not stop there. ^® 

Removal of the religious context does not alter the court's conclu- 
sion. When Illinois provided that upon the death of the mother 
illegitimate children became the wards of the State and their father 
had no right to custody and no say in the State's treatment of the 
children, the court struck the statute down and held that before a 
father of illegitimate children could be deprived of his ])arental 
interest the State would have to give him a fitness hearing, just as it 
would have been required to under State law for the father of legitimate 
children.^° 

The private interest here, that of a man in the children he has sired and raised* 
undeniably warrants deference and, absent powerful countervailing inteiest, pro- 
tection. It is plain that the interest of a parent in the companionship, care, 
custody, and management of his or her children "come[s] to this Court with a 
momentum for respect lacking when appeal is made to libeities which derive 
merely from shifting economic arrangements." 

The reach of the principle may be observed in Justice Powell's 
plurality opinion for the court in Moore v. City o-f East Cleveland}^ 
There, the city had zoning regulations imposing definitional limita- 
tions upon extended families as one device of limiting the number of 
persons in a household. The ordinance precluded having the children 
of more than one child of the head of a household in the house and 
when a grandson of Mrs. Moore came to live with her upon the death 
of his mother she came in violation of the ordinance because another 
son and his son were already dwelling in the house, Meyer, Pierce, 
Stanley, and Yoder were relied on as establishing that State interfer- 
ence with the family required a com^pelling justification; to the argu- 
ment that a grandmother could not take advantage of this line of 
cases Justice Power was unsympathetic.^^ 

Our decisions establish that the Constitution protects the sanctity of the 
family precisely because the institution of the family is deeply rooted in this 
Nation's history and tradition. . . . 

Ours is by no means a tradition limited to respect for the bonds uniting the 
members of the nuclear family. The tradition of uncles, aunts, cousins, and esep- 
cially grandparents sharing a household with parents and children has roots 
equally venerable and equally deserving of constitutional protection. . . . 

[T]he choice of relatives in this degree of kinship to live together may not 
lightly be denied by the State. 

While all aspects of entry into marriage and the family are protected 
from noncompelling governmental interference, and frequently in 

J« "Our holding in no way determines the proper resolution of possible competing interests of parents, 
children, and the State in an appropriate State court proceeding in which the power of the State is asserted 
on the theory that Amish parents are preventing their minor children from attending hish school despite 
their expressed desires to the contrary. Recognition of the claim of the State in such a proceeding would, 
of course, call into question traditional concepts of parental control over the religious upbringing and educa- 
tion of their minor children recognized in this Court's past decisions. It is clear that such an intrusion by a 
State into family decisions in the area of religious training would give ri?e to grave questions of religious 
freedom comparable to those raised here and those presented in Pierce v. Socuty of Sisters . . . " Id., 231-232. 

30 Stanley v. Illinois, 40.5 U.S. 645 (1972). The quoted passage is at id., fwl Stanley and the children's 
mother had lived together for 18 years and he had always assumed responsibility for their support. When, 
however, the father's relationship has been significantly different the State has greater leeway. E.g., Quilloin 
V. Walcott, 98 S. Ct. 549 (1978) (father who has never lived with children and has only intermittently sup- 
ported them has no protected right to object to their adoption by mother's husband who has supported 
them). 

31 431 U.S. 494 (1977). 

32 Id., .503, 504, 505-506. Justice Stevens concurred in the Court's decision on alternate grounds, id., 513. 
and there were four dissents, three of them denying that the liberty interest found by the Court, extended 
this far. While the Court was substantially divided on the application and meaning of "familiar liberty" 
in this case, each (;f the Justices, except for Justice Rehnquist, has joined opinion.-^ containing the same 
rhetoric of Justice Powell's opinion, indicating the general principle is firmly established. E.g., Zablocki v. 
Redhail, 98 S. Ct. 673 (1978); Smith v. Organization of Foster Families, 431 U.S. 816 (1977). See also Cook V. 
Hudson, 429 U.S. 165, 166 (1976) (Chief Justice Burger). 

35-352—78 3 



8 

cases with strong rhetorical flourishes,^^ the protection is not absolute. 
Thus, in Prince v. Massachusetts,^^ the Court sustained the conviction 
of a Jehovah's Witness for violating a law prohibiting street solicita- 
tion by minors because she permitted her nine-year old niece, who 
desired to accompany her, to help her sell religious literature on the 
street. Acknowledging the conflict between the governmental claims 
and the "sacred private interests" associated with Mrs. Prince's 
claims, the Justices pointed to the government's duty to limit parental 
control by requiring school attendance, regulating child labor, and 
otherwise protecting children against the evils of emplo\Tnent and 
other activity in public piaces.^^ 

The zealous though lawful exercise of the right to engage in propagandizing the 
community, whether in religious, political or other matters, may and at times 
does create situations difficult enough for adults to cope with and wholh'- inappro- 
piiate for children, especially of tender years, to face. Other harmful possibilities 
could be stated, of emotional excitement and psychological or physical injury. 
Parents may be free to become martyrs themselves. But it does not follow they 
are free, in identical circumstances, to make martyrs of their children before they 
have reached the age of full and legal discretion when they can make that choice 
for themselves. 

Constitutional Rights of Children 
a. juvenile delinquency process 

In all the States of the Union and the District of Columbia there 
is provision made for treating persons under a certain age who 
have allegedly committed an offense which if committed by an adult 
would be criminal or who have become delinquent in a sense not recog- 
nizable under laws dealing with adults, such as statutory provisions 
relating to habitual truancy, deportment endangering the morals or 
health of the juvenile or others, or consistent disobedience making 
the juvenile uncontrollable by his parents. The reforms of the early 
part of this century provided not only for segregating juveniles from 
adult offenders in the adjudication, detention, and correctional fa- 
cilities, but they also dispensed with the substantive and procedural 
rules surrounding criminal trials which were mandated by due process. 
Justification for this abandonment of constitutional guarantees was 
offered by describing juvenile courts as civil not criminal and as not 
dispensing criminal punishment and offering the theory that the State 
was acting as parens 'patriae for the juvenile offender and was in no 
sense his adversary. Disillusionment with the results of juvenile re- 
forms coupled with judicial emphasis of constitutional protection of 
the accused led in the 1960's to a substantial restriction of these ele- 
ments of juvenile jurisj)rudence.^^ 

Constitutional restraints have been imposed upon the juvenile de- 
linquency process in the last ten years but the Court has been very 
conscious that it has been dealing with an institutional arrangement 
necessitated by the special status of the young and reflecting both the 



M Eg., Loring v. Vmjinin, 3S8 U.S. 1, 12 (lOfu): Zahlocki v. Redhail. 98 S. Ct. 073 (1978) (right to marry); 
Skinner v. Oklahoma er rcl. Williaivson, 310 U.S. oS") (1042) (prooroation); Cleveland Bd. of Educ. v. LaFleur, 
414 U.S. 632 (1974) (pmployinoiit disabilities visited upon pregnant teachers); Roe v. H'ade, 410 U.S. 113 
(1973) (termination of pregnancy). 

»*321 U.S. ir)8(1944). 

36 Id., 100, 170. 

w See The President's Conmiission on Law Enforcement and Admin i.stration of Justice, Task Force Re- 
port; Juvenile Delinqvenaj and Youth Crime (1907): for a review of the Supreme Court's response through its 
decision making, see Schultz & T'ohon. "Isolationism in Juvenile Court Jurisprudence," in M. Rosenheim 
(ed.). Pursuing Justice for the Child (1970), 20. 



9 

interests of the young and society. It has not, however, achieved any 
unified view of what the process is in very concrete terms. 

Observing that "neither the Fourteenth Amendment nor the Bill 
of Rights is for adults alone," the Court imposed substantial due 
process observance on a delinquency proceeding in its first encounter 
with the constitutional aspects of the juvenile delinquency process.'^ 
The application of due process to juvenile proceedings would not en- 
danger the good intentions vested in the system nor diminish the 
features of the system which were deemed desirable — emphasis upon 
rehabilitation rather than on punishment, a measure of informality, 
avoidance of the stigma of criminal conviction, the low visibility of 
the process — but the consequences of the absence of due ])rocess 
standards made their application necessary, the Court fo\md, especially 
in a case where the judgment of wrongdoing was arrived at cavalierly.^ 

[W]e confront the reality of that portion of the juvenile court process with 
which we deal in this case. A boy is charged with misconduct. The boy is com- 
mitted to an institution where he may be restrained of liberty for years. It is of 
no constitutional consequence — and of limited practical meaning — that the in- 
stitution to which he is committed is called an Industrial School. The fact of the 
matter is that, however euphemistically the title, a ''receiving home" or an "in- 
dustrial school" for juveniles is an institution of confinement in which the child 
is incarcerated for a greater or lesser time. . . . 

In view of this, it would be extraordinary if our Constitution did not require 
the procedural regularity and the exercise of care implied in the phrase 'due 
process." Under our Constitution, the condition of being a boy does not justify 
a kangaroo court. 

Thus, the Court required that notice of charges be given in time for 
the juvenile to prepare a defense, required a hearing in which he 
could be represented by retained or appointed counsel, required ob- 
servance of the rights of confrontation and cross-examination, and 
required that the juvenile be protected against self-incrimination. 
Subsequently, it was held that the ''essentials of due process and fair 
treatment" required that a juvenile could be adjudged delinquent 
only on evidence sufficient to satisfy the reasonable doubt standard 
when offense charged would be a crime if committed by an adult,^® 
but the Court declined to hold that jury trials were constitutionally 
required in juvenile proceedings.''^ 

The most recent decision leaves the field in a state of some confusion. 
California had established a system under which juvenile offenders 
who were found to be beyond the benefit of the juvenile court system 
could be transferred to adult courts of general criminal jurisdiction; 
the transfers were accomplished after an adjudicatory juvenile hearing 
at which the children were found to be delinquent. But the Court, 
speaking through Chief Justice Burger, held that the subsequent pros- 
ecution in criminal court following the adjudicatory proceeding in 
juvenile court violated the Fifth Amendment's double jeopardy 
clause.*^ Jeopardy, the Court said, denotes risk, a ''risk that is tradi- 

^ In re GauU, 387 U.S. 1 (1907), the quoted phrase is at id., 13. 

« Id., 27-28. Earlier, the Court had held that before a juveuile could be "waivod" to an adult court for trial, 
there had to be a hearing and findings of reasons, a result based on statutory interpretation but apparently 
constitutionahzed in GauU. KeiU v. United States, 383 U.S. 541 (19G6), noted on this point in id 
387 U.S 30-31 

39 In re Winship, 397 U.S. S-'iS (1970) 

" McKeiver v. Pennsylvania, 403 U.S. 508 (1971). No opinion was concurred in by a majority of the Justices. 
A plurality of four reasoned that a juvenile proceeding was not "a criminal prosecution" within the terms 
of the Sixth Amendment, so that jiu-y trials were not automatically required: instead, a test of "fundamental 
fairness" should be used and in that regard a jiu-y was not a necessary component of fair factfinding while 
its use would have serious repercussions on the rehabilitative ai\d protective functions of the juvenile court. 
Two Justices concixrred on other grounds and three dissented. 

*i Breed v. Jones, 421 U.S. 519 (1975). 



10 

tionally associated with a criminal prosecution". The child faced in 
the juvenile adjudication the risks of the stigma inherent in the deter- 
mination of delinquency and the deprivation of liberty for many years. 
Further, the Court found little to distinguish the potential conse- 
quences involved in juvenile adjudicatory hearings and in criminal 
proceedings. Given the identity of risks faced in the juvenile court and 
in subsequent criminal prosecution, the Court ruled that the task of 
twice marshaling resources and twice being subjected to the heavy- 
personal strain of trial was constitutionally forbidden.^^ But since 
under Ga'ult the juvenile must be given a hearing before being trans- 
ferred to adult proceedings, the Court did observe that ''nothing 
decided today forecloses States from requiring, as a prerequisite to the 
transfer of a juvenile, substantial evidence that he committed the 
offense charged, so long as the showing required is not made in an 
adjudicatory proceeding." ^^ 

There at present the matter rests, presumably awaiting further 
elaboration by the Court of the procedural protections to be observed 
in juvenile proceedings adjudicating questions that would in the adult 
world be criminal proceedings. But still to be considered at all by the 
Court are such questions as the substantive and procedural guarantees 
to be applied in proceedings when the matter at issue is not essentially 
criminal-like conduct but misbehavior or uncontrollability requiring 
application of legal sanctions. Being labeled a PINS, a MINS, or a 
CHINS *^ or unruly child is probably only marginally less stigmatizing 
than being adjudicated a delinquent and the disposition of such per- 
sons in the system usually involves the same restraints upon liberty. 
Keformers have argued that laws permitting courts to enter orders 
seriously interfering with children's freedom on the basis of non- 
criminal misbehavior are overbroad, punish a status rather than an 
act, and deny children the equal protection of the laws. The case laws 
is yet in a very primitive state and it may be some time before the 
Supreme Court is ready to deal with these issues.** 

B. THE SPEECH AND PRESS RIGHTS OF CHILDREN 

Not surprisingly, the speech and press issues involving children 
have arisen in the educational context and, while the Court has recog- 
nized legitimate institutional interests in preserving discipline and 
order, students generally have been accorded wide-ranging protection, 
certainly at the college level and increasingly in the high schools. 

Standards of the First Amendment expression guarantees against 
curtailment by school authorities were first enunciated by the Court 
Tinker v. Des Moines Ind. Community School Dist.,'^^ in which high 
school principals had banned the wearing of black arm-bands by 
students in school as a symbol of protest against United States actions 



" Id., o28-')31. The coiirlusion that the juvenile adjudicatory proceeding is akin to a criminal proceeding 
for double jeopardy purposes is manifestly inconsistent with the plurality opinion's conclusion in McKeivcr 
that a juvenile adjudicatory proceeding is not akin to a criminal proceeding for jury trial purposes, an opinion 
which the Chief Justice joined. The Court's effort to distinguish McKeicer was unpersuasive. "We deal here, 
not with 'the formalities of the criminal adjudicative process/ McKeiver v. Pennsylvania, 403 U.S. at 551 
(opinion of Blackmun, J.), but with an analysis of an aspect of the juvenile court system in terms of the kind 
of risk to which jeopardy refers." id., 531. 

" Jd., .5.38 n. 18. 

<< I.e., person, minor, or child in need of supervision. 

" But see Gcsicki v. Oswald, 336 F. Supp. 371 (D.S.D.N.Y. 1971), a,"d 406 U.S. 913 (1972) (voiding a law 
permitting the State courts to commit so-called wayward minors to adult prisons). 

" .393 U.S. .503 (1969). No doubt exists that the children were reOecting the views of their parents, see supra, 
n. 2.5, but the opinion broadly addresses the rights of the children. 



11 

in Viet Nam. Reversing the refusal oC lower courts to reinstate stu- 
dents who had been suspended for violating the ban, the Court set out 
the balance to be drawn/' 

First Amendment rights, applied in light of the special characteristics of the 
school environment, are available to teachers and students. It can hardly be 
argued that either students or teachers shed their constitutional rights to fie(?d(jm 
of speech or expression at the school house gate. . , . On the other hand, the Court 
has repeatedly emphasized the need for affirming the comprehensive authority of 
the States and of school officials, consistent with fundamental constitutional safe- 
guards, to prescribe and control conduct in the schools. 

Restriction on expression by school authorities is only permissible 
to prevent disruption of educational discipline.''^ 

In order for the State in the person of school officials to justify prohibition of a 
particular expression of opinion, it must be able to show that its action was 
caused by something more than a mere desire to avoid the discomfort and un- 
pleasantness that always accompany an un])opular viewpoint. Certainly where 
there is no finding and no showing that engaging in the forbidden conduct would 
"materially and substantially interfere with the requirements of appropriate 
discipline in the operation of the schools," the prohibition cannot be sustained. 

Tinker was reaffirmed in Healy v. James,'^^ in which it was held that 
the w^ithholding of recognition by a public college administration 
from a student organization violated the students' right of association 
which is a construct of First Amendment liberties. Denial of recogni- 
tion, the Court held, was impermissible if it had been based on the 
local organization's affiliation with the national SDS or on disagree- 
ment with the organization's philosophy, or on a fear of disruption 
with no evidentiary support.^^ 

First Amendment rights must always be applied "in light of the special char- 
acteristics of the . . . environment" in the particular case. . . . And, where 
State-operated educational institutions are involved, this Court has long recog- 
nized "the need for affirming the comprehensive authority of the States and of 
school officials, consistent with fundamental constitutional safeguards, to pre- 
scribe and control conduct in the schools." . . . Yet, the precedents of this 
Court leave no room for the view that, because of the acknowledged need for 
order. First Amendment protections should apply with less force on college 
campuses than in the community at large. Quite to the contrary, "[t]he vigilant 
protection of constitutional freedoms is nowhere more vital tlian in the com- 
munity of American schools." . . . The college classroom with its surrounding 
environs is peculiarly the "market place of ideas" and we break no new constitu- 
tional ground in reaffirming this Nation's dedication to safeguarding academic 
freedom. 

But a college could impose reasonable regulations to maintain order 
and preserve an atmosphere in which learning may take place and it 
may impose as a condition of recognition that each organization affirm 
in advance its willingness to adhere to reasonable campus law.^^ But 
no matter how tasteless the expression, the mere dissemination of 
ideas in a college campus newspaper cannot be made the subject of 
suppression nor the disseminators punished. ^- 

« Id., 506, 507. 

<8 Id., 509. 

<M08 U.S. 169 (1972). An associated right is that of hearing controversial speakers who may be banned 
from campus. These bans have generally been invalidated. E.g., Snyder v. Bd. of Trustees, 286 F. Supp. 
927 (N.D. 111. 1968); Brooks v. Auburn Univ., 296 F. Supp. 188 (M.D. Ala.), aff'd, 412 F. 2d 1171 (C.A.5, 
1969); Stacy v. Williams, 306 F. Supp. 963 (N.D. Miss. 1969). 

» Id., 408 U.S., 180. 

" Id., 193. 

6» Papish V. Bd. of Curators, 410 U.S. 667 (1973). The decision is a formal recognition by the Court of the 
equivalence of the college student press with the adult coimterpart. It upset the dismissal of a graduate 
student for distributing on campus a newspaper with a cartoon showing policemen raping the Statue of 
Liberty and peppered with the usual vulgarisms of the student protestors. For somewhat more serious 
journalistic efforts being protected, see, e.g., Joyner v. Whiting, 477 F. 2d 245 (C.A. 4, 1973) ; Bazaar v. Fortune, 
476 F. 2d 570 (C.A. 5), modified en banc, 489 F. 2d 225 (C.A. 5, 1973), cert. den. 416 U.S. 995 (1974). 



12 

As the case law shows, the idea of a wide continuum of student free 
expression is not an accepted fact among school administrators but 
the courts have voided far many more restraints than they have 
accepted. Save for some expectable grotesqueries,^ the cases show a 
generally responsible exercise of rights of ex[)ression and a fair measure 
of accommodation between students and school administrators. But 
significant issues remain and perhaps the most uncertain involves the 
extent to which high school students are as protected as college 
students, especially in the context of the high school press.^* 

Aside from speech and press rights, students have achieved at most 
a mixed record in asserting other substantive rights. The most disputed, 
and still unsettled, assertion has been w^th respect to student dress 
codes, particularly in terms of hair length standards, which has 
involved an incredible amount of court time, has divided the courts of 
appeals,^^ and has failed to get the attention of the Supreme Court.^* 

C. DUE PROCESS RIGHTS OF STUDENTS FACING DISCIPLINE 

Again, in discussing the constitutional rights of children, we are 
drawn to narrow the class to students and consider what rights to 
procedural due process and perhaps to substantive due process they 
have when faced with discipline by school authorities. The seminal 
decision here is Goss v. Lopez.^'' Prior to Goss, lower courts were vir- 
tually unanimous in holding that expulsions and lengthy suspensions 
must be accompanied by procedural due process.^^ Goss was both an 
affirmance of this case law and an extension, striking do^\^I an Ohio 
statute that authorized school authorities to suspend students for up 
to ten days without notice or hearing. Suspension, even for such a 
short period, the Court found to affect '^property" and ''liberty'^ 
interests protected by the Fourteenth Amendment and that public 
school students were protected in the enjoyment of both.^^ Inasmuch 
as due process is a flexible concept, to be applied as interests balance 
differently, the Court, in recognition of the nature of the educational 
situation, did not require the app>lication of the full panoply of due 
process rights but rather ''rudimentary" procedural protections 

« E.g., State V. Van Slyke, 489 S. W. 2d 590 (Ct. Grim. App. Tex. 1973). appeal dismd. for want of substantial 
federal qufstion, 418 U.S. 907 (1974) (conviction under flag desecration statute of one who, with no apparent 
intent to communicate, but in course of "horseplay", blew his nose on a flag, simulated masturbation on it, 
and finally burned it). And see Yench v. Stockmar, 483 F. 2d 820 (C.A. 10, 1973) (expulsion of student for 
wearing IVIickey Mouse cap to graduation; remanded for hearing on whether wearing Mickey Mouse cap is 
expressive activity). 

" E.g., Jacobs v. Bd. of School Comrs., 349 F. Supp. 605 (S.D. Ind. 1972). affd, 490 F. 2d 601 (C.A. 7, 1973), 
vacated as moot. 420 U.S. 128 (1975) (right to print, sell, and distribute underground newspaper containing 
anonymous articles). A pressing issue is the validity of regulations requiring submission of student material 
to a school official prior to publication. The courts are divided. Compare Fujishima v. Bd. of Ednc, 460 F. 2d 
1355 (C.A. 7, 1972), and Riseman v. School CommUtee, 439 F. 2d 148 (C.A. 1, 1971) (voided), with Eisner v. 
Stamford Bd. of Educ, 440 F. 2(1 803 (C.A. 2, 1971) (uph(>ld but promulgation of narrow standards and tx- 
peditioas revi«'w required). The newest issue apparently concerns the propriety of schools halting the 
taking and publishing of surveys of student sex attitudes. Compare Gnmbino v. Fairfax Co. Bd. of Eluc, 
429 F. Supp. 781 (E.D. Va.). affd, 564 F. 2d 157 (C.A. 4, 1977), with Trachtman v. Anker, 563 F. 2d 512 (C.A. 
2, 1977), cert, den.. No. 77-1051 ^March 20. 1978). 

M Compare Richards v. Thurston, 424 F. 2d 1281 (C.A. 1, 1970); Massie v. Henrv, 455 F. 2d 779 (C.A. 4, 1972); 
Breen v. Kahl, 419 F. 2d 1034 (C.A. 7. 1969), c(rt. den. 398 U.S. 937 (1970). with Karr v. Schmidt, 460 F. 2d 
609 (C.A. 5) (en banc), cert. dm. 409 U.S. 989 (1972); Kino v. Saddleback Junior College Dist., 445 F. 2d 932 
(C.A. 0),C(rt. den. 404 U.S. 979 (1971); Freeman v. Flake, 448 F. 2d 258 (C.A. 10). cert. den. 405 U.S. 1032 (1971). 
The courts have been unable to decide whether the claimed right should be characterizt>d as expressive 
conduct protected by the First Amendment or u liberty interest protected by duo process, but see infra, 
n. 56. See Jj. Tribe, op. cit., n. 4, 958-965. 

M In Kelley v. Johnson, 425 U.S. 238 (1976), the Court held that policemen could be held to a much higher 
Btandarrl of dre^s than could other citizens in sustaining a hair length regulation. The Court assumed with- 
out deciding that there is some sort, of liberty interest in matters of personal appearance. Id., 244. 245. 

"419 U.S. .565 (1975), The decision was 5-to-4 and accompanied by a sharp and vigorous^ dis- 
sent written by Justice Powell. iCI ^ 

w Id., 576 n. 8 (citing and characterizing cases). The leading case had been Dixon v. AabamalState'.Bd. o ' 
Educ, 294 F. 2d 150 (C.A. 5), cert, den 368 U.S. 930 (19G1). 

" Id., 419 U.S. 572-576. 



13 

necessitated ''some kind of notice" and "some kind of hearinp:." Thus, 
there was to be no necessary ''delay between the time 'notice' is <^iven 
and the time of the hearing." 

The notice need only identify the offending conduct so that the 
student would have "an opportunity to explain his version of the 
facts," but need not accord him an opportunity for i)reparatiou. The 
hearing procedure was not required to be encumbered by the custom- 
ary accounterments of a fair hearing; it was rather more like a "dis- 
cussion". The Court observed that the procedure followed in one of 
the schools involved in the case was "remarkably similar to that we 
now require." Under it, a teacher observing misconduct would complete 
a form describing the occurrence and send the student, with the forra^ 
to the principal's office. There the principal would obtain the student's 
version of the event and, if it conflicted with the teacher's written 
description, would send for the teacher to hear the teacher's own ver- 
sion, apparently in the presence of the student. If a discrepancy still 
existed, "the teacher's version would be believed and the principal 
would arrive at a disciplinary decision based on it." ^^ 

In light of the minimal requirements imposed upon school dis- 
ciplinary proceedings, it is a little difficult to appreciate the forcefulness 
of Justice Powell's dissent, although the principles generally urged 
are perfectly understandable. Basically, the Justice argued that because 
children lacked the capacity of adults it was the obligation of school 
authorities to protect and guide student interests, that essentially the 
relationship was paternalistic not an adversary one, and to impose what 
was an adversary relationship through due process would destroy the 
role and responsibilities of school officials without accomplishing any 
thing constructive in return.^^ Additionally, the Justice feared that 
academic decisions would be similarly subject to judicial review.^- 

That fear is apparently unfounded. In its most recent decision, 
the Court in an opinion joined by five Justices indicated in strong 
dicta, that a significant difference inheres between school decision de- 
termining a failure of a student to meet academic standards and such 
decisions based on student violations of valid rules of conduct, and that 
difference justifies dispensing with any due process requirements, such 
as a hearing.®^ 

Academic evaluations of a student, in contrast to disciplinary determinations, 
bear little resemblance to the judicial and administrative factfinding proceedings 
to which we have traditionally attached a full hearing requirement. In Goss, the 
school's decision to suspend the students rested on factual conclusions that the 
individual students had participated in demonstrations that had disrupted classes, 
attacked a police officer, or caused physical damage to school property. The re- 
quirement of a hearing, where the student could present his side of the factual 
issue, could under such circumstances "provide a meaningful hedge against errone- 
ous action." . . . The decision to dismiss respondent, by comparison, rested on 
the academic judgment of school officials that she did not have the necessary 



w Id., 570-584, and 568 n. 2. For the differences between this "nidimcntary" fomi and the ordinary require- 
ments, see Constitution Annotated, op. cU., n. 4, 1436-1439. For a students' rights advocate's view of Qoss, 
see Letwin, "After Goss v. Lopez: Student Status as Suspect Classification," 29 Stan. L. Rev. 627 (1977). 
For an early discussion see Buss, "Procedural Due Process for School Discipline: Probing the Constitutional 
Outhne," 119 U. Pa. L. Rev. 545 (1971). 

«i Id., 419 U.S. 584. 

62 Id., 597. 

M Board of Curators v. Horowitz, 98 S. Ct. 948 (1978). The quotation is at p. 11 id., 955. Four Justices either 
disagreed or argued that the Court shoiHd not reach out to decide an issue not before it. The Court's actual 
holding was that Horowitz had been accorded all the protection the Constitution required because of exten- 
sive discussion and consultation with faculty and others, a point on which all nine Justices agreed; nonethe- 
less, the major portion of the opinion of the Court is concerned with establishing the proposition that she 
was not entitled to any such rights at all and little doubt exists that a majority subscribes to that point of 
view. 



14 

clinical ability to perform adequately as a medical doctor and was making insuf- 
ficient progress toward that goal. Such a judgment is by its nature more subjective 
and evaluative than the typical factual questions presented in the average disci- 
plinary decision. Like the decision of an individual professor as to the proper grade 
for a student in his course, the determination whether to dismiss a student for 
academic reasons requires an expert evaluation of cumulative information and is 
not readily adapted to the procedural tools of judicial or administrative decision- 
making. 

Moreover, another recent decision raises serious implications for 
the continuing vitaUty of Goss.^^ There, the Court held that a school 
system need not afford students any form of hearing prior to adminis- 
tering corporal punishment, not because the students' interest in being 
free from wrongfully administered corporal punishment was not a 
liberty interest safeguarded by the due process clause, the Court ex- 
pressly held that it is, but rather because under State law persons who 
nave been wrongly, erroneously, or excessively punished by teachers 
and school oflGicials have a common-law tort remedy. The existence 
of this remedy not only afforded such students relief when they were 
wronged but it operated as well to deter the imposition of such punish- 
ment, which was the same purpose a pre-infliction hearing would 
achieve. ^^ 

In view of the low incidence of abuse, the openness of our schools, and the com" 
mon-law safeguards that already exist, the risk of error, that may result in viola- 
tion of a schoolchild's substantive rights can only be regarded as minimal. Impos- 
ing additional administrative safeguards as a constitutional requirement might 
reduce that risk marginally, but would also entail a significant intrusion into an 
area of primary educational responsibility. We conclude that the Due Process 
Clause does not require notice and a hearing prior to the imposition of corporal 
punishment in the public schools, as that practice is authorized and limited by 
the common law. 

If the due process clause is satisfied by the existence of State 
remedies in terms of preventive guarantees, it may very well be 
satisfied in terms of remedial guarantees, such as damage actions, as 
well, which would constitute an enormous alteration of civil rights 
jurisprudence and extend far beyond the area of students rights.^*^ In 
any event, the holding in Ingraham is almost unprecedented and has 
considerable implications for the assertions of Federal constitutional 
rights in Federal courts. The constitutional standards here must then 
be pronounced unsettled. 

D. CONSTITUTIONAL CONFLICT: PAKENTS AND STATE 

Only recently has the Supreme Court dealt with cases in which 
the asserted constitutional rights of children came into conflict ^^dth 
parental rights and interest and the Court has yet to settle upon any 
consistent doctrinal approach to these kinds of conflict. 

In holding that the imposition of an absolute requirement of 
parental consent on a pregnant minor's decision to have an abortion 

M IngTaham v. Wright, ISO U.S. 0")1 (H)77). The holding was another r>-to-4 which paralleled the line-up in 
Goss, Justice Stevens taking Justice Douglas' position, withJtlio exception of Justice Stewart who joined the 
Ooss dissenters. IngTaham also rejected a claim that corporal punishment implicated the cruel and unusual 
punishment clause of the Eighth Amendment. 

" Id., ()72-^)82. The quotation is at id., (•)82. 

w In Wood V. Strickland, 420 U.S. 308 (l'J75), the same Court lineup as in Qoss held that school officials 
In approjjriate circumstances could be held liable in damages for denial of student constitutional rights. 
The rule that the existence of state judicial remedies is irrelevant for purposes of federal judicial remedies 
was emmciated in the present context in Monroe v. Pape, Stif) US. 167 (1961), but its antecedents are much 
older. See Home Tel. A Tel. Co. v. City of Los Angeles, 227 U.S. 278 (1913). The divergence of approach be- 
twecin Strickland, and perhaps Goss, and Ingraham was not narrowed, or even referred to, in Carey v. Piphus, 
No. 76-1149 (decided Mar. 21, 1978). 



15 

is unconstitutional,^^ the Court failed to analyze the matter beyond a 
fairly cursory statement of the holding and rejection of the proferred 
State interests. Because the State had no power to veto the decision 
of a woman and her physician with respect to an abortion the State 
had no power to delegate to ''a third party an absolute, and possibly 
arbitrary, veto" over the decision. Children are protected by the 
Constitution, the Court said, but it was true that State power to 
regulate minors was somewhat broader than its power to regulate 
adults; however, no significant State interest justified this exercise of 
the power.^^ 

One suggested interest is the safeguarding of the family unit and of parental 
authority. ... It is difficult, however, to conclude that providing a parent with 
absolute power to overrule a determination, made by a physician and his minor 
patient, to terminate the patient's pregnancy will serve to strengthen the family 
unit. Neither is it likely that such veto power will enhance parental authority or 
control where the minor and the nonconsenting parent are so fundamentally in 
conflict and the very existence of the pregnancy already has fractured the family 
structure. Any independent interest the parent may have in the termination of 
the minor daughter's pregnancy is no more weighty than the right of privacy 
of the competent minor mature enough to have become pregnant. 

Approved in principle, however, was a statute from another State 
that required consultation between parents and minor pregnant 
daughter on the question of abortion but conferred no veto and af- 
forded the minor an expeditious avenue to obtain authorization for 
an abortion after consultation, irrespective of the parents wishes.^^ 

Nor were standards developed in a case in the following Term in 
which the Court, inter alia, struck down a statute which barred anyone 
from selling or distributing contraceptives to a minor under 16 years 
of age.^*^ The plurality opinion relied upon Planned Parenthood, 
finding that the right to privacy in decisions affecting procreation 
extended to minors as well as adults. It nevertheless declined to apply 
the compelling State interest test, applied elsewhere in the opinion 
in the case of adults, to intrusions upon the privacy of minors. Instead, 
Justice Brennan reasoned, the government's "greater latitude to regu- 
late the conduct of children," and the minor's 'lesser capability for 
making important decisions" led to the conclusion that ''any signi- 
ficant State interest . . . not present in the case of an adult" would 
justify narrowly drawn infringements on the minor's right to privacy. ^^ 

But none of the goals advanced by the State met this more defer- 
ential test. The State interest in the physical and mental health of the 
minor was only slightly implicated by a decision to use a nonhazardous 
contraceptive. Deterring teenage sexual activity was probably a 
legitimate governmental interest, but it was not served by a State 
policy that in effect prescribed a veneral disease or un unwanted 
pregnancy or abortion as punishment for fornication.^^ The three 
concurring Justices took varying tacks. Justice White argued that the 
significant State interest in prohibiting extramarital sexual relation- 
ships of both minors and adults was not measurably furthered by the 

67 Planned Parenthood v. Danforth, 428 U.S. 52, 72-75 (1976). The decision in this respect was 5-to-4 and 
two of the Justices in the majority also concurred in an opinion that was not entirely in agreement with 
everything said in the opinion of the Court. Id., 89, 90-91 (Stewart and Powell). 

68 Id., 75. 

69 Id., 75, and 90-91 (Stewart); see also Bellotti v. Baird, 428 U.S. 132 (1976). 

70 Carey v. Population Services International, 431 U.S. 678, 691-699 (1977) (plurality opinion). See also id., 
702 (Justice White), 707 (Justice Powell), 713 (Justice Stevens). 

71 Id., 693 n. 15, 594-695. 

72 Id., 696. The analysis tracked closely Justice Brennan's opinion for the Court in Eisenstadt v. Baird 
405 U.S. 438 (1972), voiding a law that denied contraceptives to the unmarried. 



16 

statute. Justice Stevens thought it a legitimate governmental interest 
to deter sexual conduct by minors but it was ''irrational and perverse^' 
to seek to accomplish that interest through denial of contraceptives. 
Justice Powell's concurrence was much more narrow, faulting the 
statute because it denied contraceptives to married minors and be- 
cause it prohibited parents from giving contraceptives to their minor 
children. ^^ 

Whatever the doctrinal shortcomings in the foregoing cases, it can 
be hoped that the issues involved in a case currently before the 
Supreme Court will enable the Justices to agree upon a reasonably 
formulated constitutional standard to be applied when children seek 
rights that would undeniabl}^ be theirs if they were onlj^ adults. 
Lacking are those aspects that perhaps skew the line drawing, such as 
abortion and contraceptives access, that were present in Danforth 
and Carey; but there is present a potentially disruptive and skewing 
factor, the existence of parental rights previously deemed by the Court 
to be entitled to constitutional protection also. 

The case** concerns the due process standards to be applied when 
the State affords procedures by which parents or guardians may com- 
mit minor children to institutions.^^ Distinguishable from the in- 
voluntary commitment process that the Court has only recently 
surrounded with constitutional safeguards is the "voluntary ad- 
mission", the procedure used to enter a mental or other facility that 
is commenced by the affirmative action of the patient himself or by 
one empowered by law to act in the patient's behaK. 

In the case of an unemancipated minor, application may be made 
only by a parent, guardian, or individual standing in loco parentis to 
the potential patient; no child acting on his own may initiate the 
admission for himself. In most States children can be admitted without 
any form of judicial involvement. Typically, a legal hearing is not 
required and representation for the child is not provided. There is 
virtually no opportunity for judicial review once the child is institu- 
tionalized. Moreover, the child seeking his own release will quickly 
discover that he cannot be discharged without the authorization of 
the parent who originally admitted him. A parent's success in institu- 
tionalizing the minor hinges solely on being able to convince an 
admitting physician that the child is in need of treatment, and in 
many States the physician may not be a psychiatrist.^^ 

In its appeal the State of Georgia argues that to impose due process 
requirements upon the decision of parents, concurred in by a physician, 
to cause their children to receive treatment in State institutions, to 
subject that decision to the adversarial proceeding, would so narrow 
the scope of the parents' responsibilities to and authority over their 

73 Supra, n. 71 . The Chief Justice dissented without opinion and Justice Rehnquist dissented in an opinion 
of notable brevity. Id., 717. See "the Supreme Court, 197fi Term," 91 Harv. L. Rev. 70, 146-152 (1977). 

7< J. L. V. J'urliam, 412 F. Supp. 112 (M.D.Ga. 197fi), pTob. juris, noted, 431 U.S. 936 (1977), restored to cal- 
endar for reargumevt, 98 S. Ct. 701 (1978). The Court previously had an almost identical case before it but 
legislative alteration of the statute mooted the challenge. Bartley v. Kremens, 402 F. Supp. 1039 (E.D. Pa. 
197.-.). diamd. as moot, 431 U.S. 119 (1977). 

75 The Constitution is of course only implicated by State involvement to some degree in the controverted 
action. Constitution Annotated, op. cit., n. 4, 1460-1469, and (Supp.), S151-S156. One would have thought 
that the State involvement here was sufTicient but taking the case the Court, specifically a.'-ked the parties 
to argue the question; "Whether, whore the parents of a minor vohmtarily place the minor in a State insti- 
tution, there is suflicicnt 'State action', including subsequent action by the State institution, to implicate 
the Due Process Clause of the Fourteenth Amendment." J'arhavi v. J.J.., 431 U.S. 93(1 (1977). 

« Panneton, "Children. Commitment and Consent: A Constitutional Crisis," 10 Fam. L. Q. 295 (1977); 
Ellis, "Volunteering Children: Commitment of Minors to Mental Institutions," 62 Calif. L. Rev. 840 
(1974). The commitment of adults has been surrounded with strict standards. Humphrey v. Cody, 406 U.S. 
504 (1972); Jackson v. Indiana, 40() U.S. 715 (1972). See O'Connor v. Donaldson, 422 U.S. 603 (1975) ("State 
cannot constitutionally confine without more a nondangerous individual vrho is capable of surviving 
safely in freedom by himself or with the help of willing and responsible family members or friends.") 



17 

children in a fashion which is inconsistent with tiie Court's prior 
decisions; the State also argues that such a process would be incon- 
sistent with the deference owing to the judgment of physicians." 
Rejecting this argument below and declaring the statute unconstitu- 
tional, the district court said: ^^ 

The defendants' contention that through this statute the State as parens patriae 
merely assists parents in the performance of their traditional parental duty of 
providing for the "maintenance, protection and education of his chikh'en," 
. . . and is nothing more than a statutory confirmation of the liberty that jmrents 
and guardians have to direct the upbringing of children under their control . . . 
suggests that this statute gives to parents only the authority that they genuinely 
need to hospitalize their children and thus supplies the due process that their 
situation demands. This contention overlooks the age-old principle that "the 
touchstone of due process is protection of the individual against arbitrary action 
of government." . . . ]\Iost parents accept and faithfully perform their parental 
duties and given this unlimited statutory authority to admit their children to a 
mental hospital would use that authority only when it is genuinely necessary to 
do so. Unfortunately . . . there are some parents who abuse that authority 
and who under the guise of admitting a child to a mental hospital actually aljandon 
their child to the State. . . . 

By this statute the State gives to parents the power to arbitrarily admit their 
children to a mental hospital for an indefinite period of time. Where "the State 
undertakes to act in parens patriae, it has the inescapable duty to vouchsafe due 
process," . . . and this necessarily includes procedural safeguards to see that 
even parents do not use the power to indefinitely hospitalize children in an arbi- 
trary manner. 

Properly viewed, therefore, the principle which the district court 
adhered to was not a denial of overriding parental interest but rather a 
constitutional recognition of the State's assumed responsibility to 
safeguard children from neglect and abuse which is activated when 
the State furnishes additional authority and the facilities by which in 
some cases abuse and neglect may be accomplished. 

The Future of Children's Constitutional Rights 

"Minors, as well as adults, are protected by the Constitution and 
possess constitutional rights." ^^ ''[N]either the Fourteenth Amend- 
ment nor the Bill of Rights is for adults alone." ^° Recognition of this 
principle, however, is but the beginning of analysis. In a vast number 
of ways, goveiTiment distinguishes between the adult and the minor. ^* 

The State's interest in the welfare of its young citizens justifies a variety of pro- 
tective measures. Because he may not foresee the consequences of his decision, a 
minor may not make an enforceable bargain. He may not lawfully work or travel 
where he pleases, or even attend exhibitions of constitutionally protected adult 
motion pictures. Persons below a certain age may not marry without parental 
consent. Indeed, such consent is essential even when the young woman is already 
pregnant. The State's interest in protecting a young person from harm justifies 
the imposition of restraints on his or her freedom even though comparable re- 
straints on adults would be constitutionally impermissible. 

Nothing in the case law suggests that the dreams of the ''childrens^ 
liberation" proponents ^- are likely to be realized through constitutional 
jurisprudence. In even the cases most strongly supportive of inde- 
pendent constitutional status of minors in particular instances there is 

77 Brief for Appellants, Parham v. J.L., Xo. 75-1690, 12-21. 

'i J.L. V. Parham. 412 F. Supp., 137-138. 

79 Planned Parenthood v. Danforth, 428 U.S. 52, 74 (1976). 

30 In re Gault, 387 U.S. 1, 13 fl9fi7). 

81 Planned Parenthood v. Danforth, 428 U.S. 52, 102 (1976) (Justice Stevens dissenting). 

'^^ Op. cit., n. 7. 



IS 

express recognition that the law properly regards minors as having a 
lesser capacity for making decisions than adults have with the conse- 
quent result of the State having much greater latitude to regulate the 
conduct of children than it has with respect to adults. ^^ Combined 
with the constitutional status of parental rights to guide, direct, and 
control their children, this recognition suggests that the Constitution 
will not be deemed to enact the views of these proponents.®* 

''[T]he power of the State to control the conduct of children reaches 
beyond the scope of its authority over adults." ^^ For example, minors 
can be denied access to books, magazines, and motion pictures that 
may not be obscene under constitutional standards and thus are ac- 
cessible to adults, without a showing that children would necessarily 
be harmed by such exposure. ^^ Whatever degree of protection the 
Court eventually holds adults entitled to with respect to governmental 
regulation of their private sex lives, it seems clear that minors may 
be barred from extramarital sexual activity legitimately enforced.**^ 
And, furthermore, the Danforth holding voiding parental consent pre- 
conditions to minors' rights to abortion cautioned that no suggestion 
was warranted '^that eveiy minor, regardless of age or maturity, may 
give effective consent for termination of her pregnancy." ^® 

It would not be useful to prolong the paper by multiplexing the 
examples of the way the State may permissibly treat minors differently 
than adults. Suffice it to say, the Court has recognized that it is 
legitimate to consider minors as being less capable than adults to 
engage unrestrictedly in adult life. Therefore, the question becomes 
one, really, of the permissibility of the lines that are drawn. Two issues 
are involved in this question. 

First, the case law we have reviewed has approached the question 
in terms of particular rights and interests rather than in general terms. 
Necessarily, this is the result of the case of controversy precondition 
to the exercise of Federal jurisdiction under Article III of the Constitu- 
tion. And the raising of such particularized assertions of rights access 
to abortions or contraceptives, the right to free speech and press, for 
example — tends to focus the case law upon a narrow consideration of 
the int<erest asserted by the minor as balanced against the governmental 
interests asserted to sustain the restriction. That kind of analysis is 
pervasive in the abortion and contraceptive cases reviewed and is a 
substantial part of the other cases reviewed. This makes, of course, for 
highly particularistic decisionmaking and very few broad generaliza- 
tions. 

Second, if the linedrawing process is itself legitimate, there would 
seem to be two approaches to take in asserting the invalidity of the 
place any line is drawn, an equal protection attack and a due process 
attack using what is known as the irrebutable presumption doctrine. 

8« Carer; v. Population Services International, 431 U.S. 678. 693 n. 15 (1977) (pluraHty opinion). 

8* Cf. "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics." Lochner v. New 
York, 198 U.S. 45, 75-76 (1905) (Justice Holmes dissenting). Of course, when Ilohnes wrote, the Amendment 
in effect did. 

85 Prince v. Massachusetts, 321 U.S. 158. 170 (1944). 

8» Ginsberg v. New York, 390 U.S. 629 (1968): Erznoznik v. City of Jacksonville, 422 U.S. 205, 212 (1975). 
And see Paris Adult Theatre v. Slaton, 413 U.S. 49, 103-108 (1973)(.Iu.stiee Brennan dissenting). But "minors 
are entitled to a significant measure of First Amendment protection" and government may not bar them 
from any and all sexually related material. Erznoznik, supra, 212-213; Interstate Circuit v. City of Dallas, 390 
U.S. 67»j. 690 (1968). 

87 In Carey v. Population Serrices International, 431 U.S. 678, 694 n. 17 (1977), the Court purported not to 
decide the (lucstion of the resf)ective rights of adults and minors in this regard but the concurring and dis- 
."^entiiig .Justices were clear that minors had no right to be free of such State regulation. Id., 702-703 (Justice 
White), 705-707 (Ju.stice I'oweil). 713 (.Justice Stevens), 718 n. 2 (Justice Rehnquist). 

88 Planned Parenthood v. Danforth, 428 U.S. 52, 75 (1970). 



19 

The Fourteenth Amendment guarantee of equal protection is a 
particularly troublesome provision. It does not state an intelliti,ible 
principle on its face. Thus, a demand for equal j)rotection cannot be 
a demand that laws apply universally to all persons. All laws chissify, 
make distinctions. The legislature if it is to act at all must impose 
burdens upon or grant benefits to groups or classes of individuals. 
The demand for equality confronts the right to classify. 'Tt is of the 
essence of classification that upon the class are cast . . . burdens 
different from those resting upon the general public. . . . Indeed, the 
very idea of classification is that of inequality. . . ." *^'"^ Resolution 
of this dilemma is the doctrine of reasonable classification. The Con- 
stitution does not require that things different in fact be treated in 
law as though they w^ere the same, only that those who are similarly 
situated be similarly treated What is therefore barred are ''arbitrary" 
classifications or discriminations. Determination of "arbitrariness" is 
primarily a two-step process: (1) the identity of the discrimination is 
determined by the criterion upon which it is based, and (2) the dis- 
crimination is arbitrary if the criterion upon which it is based is 
unrelated to the State purpose. But unrelatedness is not a dichotomous 
quality; the question is not whether criterion and end are related or 
unrelated, but rather how well they are related or how poorly.^" 

This brief description is of the ''traditional" doctrine of equal 
protection analysis. It is the analysis used to review most classifica- 
tions made by government and it is unusually easy to pass. So long 
as there is some reasonable basis for the classification, the equal pro- 
tection clause is not offended because the classes are not exactly 
corresponsive with the criterion used or because there results some 
inequality. "[T]he classification must be reasonable, not arbitrary, and 
must rest upon some ground of difference having a fair and substan- 
tial relation to the object of the legislation so that all persons similarly 
circumstanced shall be treated alike." ^^ Inasmuch as minors are 
universally recognized as having less capacity than adults have, a 
governmental decision to draw a line for particular purposes at 17, 
or 18, or 21 may well have little difl&culty in passing this traditional 
test. 

In recent years, the Court has developed a doctrine of "suspect 
classifications" which merits active review wdien challenged. That is, 
the Court exercises "strict scrutiny" and government must demon- 
strate a high degree of need on its part to so classify, resulting in the 
reversal of the traditional presumption in favor of the validity of the 
governmental action. 

The principal characteristic of a "suspect class" is that it consti- 
tutes a "discrete and insular" minority peculiarly susceptible to dis- 
advantaging by the predominant majority in society and with a 
record of having been disadvantaged. Race and alienage are primaiy 
examples of suspect classifications and women and illegitimates have 

i^ Atchison, T. & S.F.R. v. Matthews, 174 U.S. 96, lOG (1899). 

90 Constitution Annotated, op. cit., n. 4, 1470-1477. See P. Brest, Processes of Constitutional Decisionmaking 
(1975), ch. 5. 

w F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). See City of New Orleans v. Dukes, 427 U.S. 
297(1976). 



20 

been accorded only slightly less favored judicial status. ^^ If minors 
could be so denominated, if age classifications were suspect, govern- 
ment would be required to draw age lines more finely, to evaluate 
with care and diligence the determination of minority status and to 
refrain from broad and general classifications affecting all minors. 
But it does not appear that age may be so denominated. In a case 
dealing with the mandatory retirement of police officers at age 50, 
the Court held that the aged or older persons did not qualify as a 
''discrete and insular" group and indicated rather strongly that age 
classifications were not suspect. ^^ 

While there are significant differences, of course, between minors 
and persons at the other end of the age scale, it does not seem likely 
that, given the context of judicial cognizance of the incapacity of 
minors, children will be held to constitute either a suspect class or a 
group entitled to intermediate scrutiny. ^^ Applying equal protection 
standards vigorously, either through strict scrutiny or an intermediate 
one, would lead toward a ''child-blind" society that would not only 
cause the removal of some undoubted injustices but would also deny 
the undoubted distinctiveness of children. 

The irrebutable presumption doctrine of due process anal3^sis 
sprang to life almost entirely during the early 1970's and was sharply 
reined in within a quite short time. Briefly stated, the doctrine 
requires that when the legislature confers a benefit or imposes a 
detriment depending for its application upon the establishment of 
certain characteristics, the legislature ma}' not conclusively ])resume 
the existence of those characteristics upon a given set of facts to 
disqualify someone from the benefit or to subject someone to the 
detriment, unless it can be shoA\Ti that the defined characteristics do 
in fact encompass all persons and only those persons that it was the 
purpose of the legislature to reach. The operation of the principle 
can be simply illustrated. 

Thus, while a State may require that nonresidents must pay higher 
tuition charges at State colleges than residents pay, and while it can 
be assumed that a durational residency requirement would be per- 
missible as a prerequisite to a new resident to qualify for the lower 
tuition, it was impermissible for the State to presume conclusively 
that because the legal address of a student was outside the State at 
the time of application or at some point during the preceding year 
he was a nonresident as long as he remained a student; due process 
requires that the student be afforded the opportunity to show that 
he is or has become a bona fide resident entitled to the lower tuition. ^^ 

"E.g., McLanqhlin v. Florida, 379 U.S. 184, 192, 194 (19fi4)frace): Graham v. Richardson, 403 U.S. 3fv) 
371-372 (1971) (aliens); Craig v. Boren, 429 U.S. 190 (1976) (gender); Trimble v. Gordon, 430 U.S. 762 (1977) 
(illegitimates). The quoted phrase in the text is from United States v. Carolene Products Co., 304 U.S. 144, 
152 n. 4 (1938). In San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973), the Court said that a suspect 
class is one "saddled with such disabilities or subjected to such a history of purposeful unequal treatment, 
or relegated to such a position of political powerlcssness as to command extraordinary protection from the 
majoritarian political process." While superficially the description may fit minors, the recognized limitation 
of capacity of minors makes it unwise so to place them. 

63 Massachusetts lid. of Retirement v. Murgia, 427 U.S. 307, 312-314 (1976). 

M The result in Oregon v. Mitchell, 400 U.S. 112 (1970), necessarily must stand for the proposition that 
age classifications affecting minors are not suspect. It is of course true that some such age classifications have 
been struck down but only in the context of difTerential age .settings for males and females. Craig v. Boren, 
429 U.S. 190 (197(i); Stanton v. Stanton, 421 U.S. 7 (1975). But see L. Tribe, op. cit., n. 4, 1077-1082; 
Tribe, "Childhood, Suspect Classifications, and Conclusive Presumptions: Three Linked Riddles," 39 
L. & Contemp. Prob. 8 (1975). 

9s Vlandis v. Kline, 412 U.S. 441 (1973). See also Dept. of Agriculture v. Murry, 413 U.S. 508 (1973) (denying 
food stamps to any household containing a member over 18 who had been claimed the previous year as a 
tax dependent by one not eligible for food stamps); Cleveland Bd. of Educ. v. LaFleur, 414 
U.S. 032 (1974) (requiring pregnant teachers to take maternity leave on presumption of incapacity to work). 
Forerunner of the doctrine was Carrington v. Rash, 380 U.S. 89 (1905). 



21 

As applied to minors, the doctrine would insist that if ajjje distinc- 
tions are premised on the assumption of incapacity of minors, then 
some minors of a certain age will not be so lackinj^ in capacity as 
others and government is required to give each person so afl'ectecl the 
opportunity to rebut the presumption of incapacity.®^ To presume 
that this 17 year old is unfit to vote, to work, to choose his own 
school because most persons of like age have certain characteristics 
is to class by statistical stereotype. 

Two responses can be made to such an argument. First, the' Court 
has sharply curtailed the doctrine, warning that extension of it to all 
governmental classifications would ''turn the doctrine of those cases 
into a virtual engine of destruction for countless legislative judgments 
which have heretofore been thought wholly consistent with the Fifth 
and Fourteenth Amendments", and limiting its application to those 
areas which involve fundamental rights or suspect classifications that 
would in equal protection analysis give rise to strict and perhai)s in- 
termediate scrutiny.®^ It may thus be that the equal protection analysis 
suggested above and the analysis of such cases as the abortion parental 
consent and the access to contraceptives decisions will be susceptible 
to some form of irrebutable presumption analysis. 

Second, it cannot be overlooked what as a practical matter would 
be the burden of ascertaining in what would undoubtedly be millions 
of instances who has the characteristics generally associated with a 
particular age and who does not. Further, to tailor all determinations 
to the individual case would be to encourage the danger of arbitrary 
choices, that depart from the goal of treating similar cases similarly, 
and choices that could well conceal substantively impermissible 
grounds of decision. And to an uncertain degree the privacy of many 
would necessarily have to give way to the requisite degree govern- 
ment would have to be informed to decide individually.®^ Little doubt 
exists that extension of the doctrine very far could make substantial 
inroads on the rule of law itself.®® 

Hundreds of years ago in England, before Parliament came to be thought of as 
a body having general law-making power, controversies were determined on an 
individualized basis without benefit of any general law. Most students of govern- 
ment consider the shift from this sort of determination, made on an ad hoc basis 
by the king's representative, to a relatively uniform body of rules enacted by a 
body exercising legislative authority to have been a significant step forward^ in 
the achievement of a civilized political society. It seems to me a little late in the 
day for this Court to weigh in against such an established consensus. 

Conclusion 

We have seen that the Supreme Court has been groping toward some 
doctrinal enunciation for the treatment of children's rights cases. For 
the most part, however, the decisions are still best analyzed in terms 
of the underlying right claimed than as a separate children's issue, 
and it may well be that this is the most we can hope for. Childhood is 
a separate and unique status and the place of children in this society 
perhaps does not admit of an overall synthesizing theory. But if the 
Court does continue in cases involving substantial claims, most es- 
pecially those of speech and the guarantees of procedural regularity, 

«8 Tribe, op. cit., n. 94; L. Tribe, op. cit., n. 4, 1077-1082, 1092-1097. 

" Weinberger v. Snlfi, 422 U.S. 749 (1975). The quoted phrase is id., 772. See also Uscry v. Turner Elkhorn 
Mining Co., 428 U.S. 1, 23-24 (1976). 
«8 L. Tribe, op. cit., n. 4, 1078, 1097. 
»• Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 657-658 (1974) (Justice Rehnquist dissenting). 



to decide to a great extent by balancing the interests claimed against 
the governmental assertions of justification in restricting them, a 
fairly high standard of justice and fairness can be attained even in 
the absence of a unifying theory. 

Johnny H. Killian, 
Assistant Chief, American Laic Division. 



APPENDIXES 

Appendix 1 

UN Declaration of the Rights Of The Child 
The right: 

To affection, love, and understanding. 
To adequate nutrition and medical care. 
To free education. 

To full opportunity for play and recreation. 
To a name and nationality. 
To special care, if handicapped. 

To be among the first to receive relief in times of disaster. 
To learn to be a useful member of society and to develop individual abilities. 
To be brought up in a spirit of peace and universal brotherhood. 
To enjoy these rights, regardless of race, color, sex, religion, national, or social 
origin 

Appendix 2 

The following organizations, as of August, 1978, have endorsed the International 
Year of the Child and have requested to work with the United States National 
Commission on the International Year of the Child: 

Action for Child T.V. 

Afro Arts Culture Center, Inc. 

AFL-CIO. 

African Methodist Episcopalian Church. 

Alan Guttmacher Institute. 

Alexander Graham Bell Association for the Deaf, Inc. 

Alpha Kappa Alpha Sorority. 

Altrusa International, Inc. 

American Academy of Child Psychiatry. 

American Academy of Pediatrics. 

American Association for Maternal and Child, Inc. 

American Association of University Women. 

American Baptist Women. 

American Bar Association. 

American College of Nurse-Midwives. 

American College of Obstetricians and Gynecologists. 

American Council of Voluntary Agencies for Foreign Service, Inc. 

American Freedom from Hunger Fund. 

American Friends Service Committee. 

American Heart Association. 

American Humane Association. 

American Leprosy Missions, Inc. 

American Lung Association. 

American Lutheran Church. 

American Medical Association. 

American Montessori Society. 

American Nurses Association. 

American Optometric Association. 

American Orthopsychiatric Association, Inc. 

American Parents Committee, Inc. 

American Personnel and Guidance Association. 

American Psychological Association. 

American Public Welfare Association. 

American School Counselor Association. 

American School Health Association. 

American Theater Association. 

(23) 



24 

American Vocational Association, Inc. 

Archdiocese of the Syrian Orthodox Church in the U.S. and Canada. 
Association for Childhood Education International. 
Association for Children with Learning Disabilities. 
Association of Junior Leagues, Inc. 

Association of State and Territorial Maternal and Child Health and Crippled 
Children's Directors. 
Baptist World Alliance. 
Big Brothers and Big Sisters of America. 
Birthright, Inc. 
Boys Clubs of America. 
Bread for the World. 
Campfire Girls, Inc. 
CARE. 

Carnegie Council on Children. 
Catholic Rehef Services. 
Center for Peace and Conflict Studies. 
"Check-Up" for Emotional Health. 
Child Welfare League of America, Inc. 
Children's Book Council. 

Children's Bureau-National Center for Child Advocacy. 
Children's Defense Fund. 
Children's Foundation. 
Children's Theatre. 
Christian Children's Fund. 
Christian Church (Disciples of Christ). 

Christian Life Commission of the Southern Baptist Convention. 
Church Women United. 
Church World Service. 
Coalition for Children and Youth. 
Commission on Christian Literature for Women and Children in Mission 

Fields. 
Concerns of Children (division-Odj'-ssey Institute). 
Council for American Private Education. 
Council of Chief State School Officers. 
Council for Exceptional Children. 
Council on Religion and International Affairs. 
CROP. 

Day Care and Child Development Council of America. 
Department of Health, Education, and Welfare — United States Office of 

Education. 
Diocese of the Armenian Church of America. 
Education Commission of the States. 
English Speaking Union. 

EVAN-G (End Violence Against the Next Generation). 
Family Service Association. 
Farm and Garden Association. 
Federally Employed Women. 
Foster Parent's Plan. 
Friends United Meeting. 
Future Homemakers of America. 
General Federation of Women's Clubs. 
Giri Scouts of the U.S.A. 
Green Circle Program ,Inc. 
Grolior Educational Corporation, 
Hadassah. 

Harry S. Truman Children Neurological Center. 
Helen Keller International Incorporated. 
Holt International Children's Society. 
International Association of Chiefs of Police. 
International Committee Against Mental Illness. 
International Cultural Centers for Youth. 
International Federation of Anti-Leprosy Associations. 
International Human Assistance Corporation. 
International Reading Association. 
International School I'sychology Committee. 
International Society for Education through Art. 
Institute for Family Development. 



25 

La Leche League. 

Leadership Conference of National Jewish Women's Organizations. 

Leadership Conference of Women Religious. 

League of Women Voters of the United States. 

Lutheran Church in America. 

Lutheran Church Women. 

Maternity Center Association. 

Muscular Dystrophy Association, Inc. 

Music Educators National Conference. 

National Association for the Advancement of Colored People. 

National Association of Childern's Hospitals and Related Institutions. 

National Association for Education of Young Children. 

National Association of Elementary School Principals. 

National Association of Negro Business and Professional Women's Clubs. 

National Association of Secondary School Principals. 

National Barristers' Wives, Inc. 

National Center for the Study of Corporal Punishment and Alternatives in the 
Schools. 

National Committee for Citizens in Education. 

National Committee for Prevention of Child Abuse. 

National Conference of Catholic Charities. 

National Congress of Parents and Teachers. 

National Consortium for Child Mental Health Services. 

National Center on Child Abuse and Neglect. 

National Council for Children and Television. 

National Council of Catholic Women. 

National Council of Churches. 

National Council on Crime and Delinquency. 

National Council of Jewish W^omen. 

National Council of Juvenile Court Judges. 

National Council for the Social Studies. 

National Council of Women of U.S. 

National Council of State Communities, Children and Youth. 

National Council Boy Scouts of America. 

National Education Association. 

National Extension Homemakers Council. 

National Federation of Temple Sisterhoods. 

National Foundation — March of Dimes. 

National 4-H Council. 

National Indian Education Association. 

National Institute of Child Health and Human Development. 

National Organization for Non-Parents. 

National Reves Syndrome Foundation. 

National Right to Life Commission, Inc. 

National Safety Council. 

National Safety Town Center. 

National School Boards Association. 

National Science Teachers Association. 

National Society for Prevention of Blindness. 

National Society of the Volunteers of America. 

National Spiritual Assembly of the Bahais of the U.S. 

National Women's Political Caucus. 

New Future Foundation. 

North American Baptist Alliance. 

North American Branch of International Movement for Fraternal Universe 
Among Races and Peoples. 

Odyssey Institution. 

Overseas Development Council. 

Overseas Education Fund of League of W^omen Voters. 

Parents Anonymous. 

Parent Cooperative Preschools International. 

Parents Without Partners. 

Pearl S. Buck Foundation. 

Philadelphia Yearly Meeting of Friends. 

Planned Parenthood Federation of America, Inc. 

Planetary Citizens. 

Play School Association. 

PWB Moravian Church. 



Reformed Church in America. 

Rehabilitation International. 

Reorganized Church of Jesus Christ of Latter Day Saints. 

Saint Jude Children's Research Hospital. 

Salvation Army. 

Save the Children. 

Social and Educational Association for Seafarers. 

Society for the Propagation of the Faith. 

Society for Public Health Education. 

Societj^ for Research and Child Development. 

Soroptimist International of the Americas. 

The Farm. 

The Girls' Clubs of America. 

The Holy Childhood Association. 

The Women's National Farm and Garden Association. 

United Church Board for Homeland Ministries. 

United Church of Christ. 

UNA/USA. 

United Methodist Church: Women's Division, Board of Church and Society, 
Board of Discipleship, Board of Global Ministries, Services in Children's Minis- 
tries. 

United Presbyterian Church. 

United Presbyterian Women. 

U.S. Coalition for Life. 

U.S. Commission for UNESCO. 

U.S. Commission for OMEP (World Organization for Early Childhood Educa- 
tion). 

United Way of America. 

Women's Equity Action League. 

Women for Racial and Economic Equality. 

Women's International League for Peace and Freedom. 

Women's League for Conservative Judaism. 

Women's National Book Association. 

Women for Racial and Economic Equality. 

Women United for the UN. 

World Education. 

World Federation of Public Health Associations. 

World Union of Progressive Judaism-North American Board. 

YMCA — National Council of the Young Men's Christian Association of the 
United States of America. 

Young Mothers Council of Services. 

YWCA — National Board of the Young Women's Christian Association of the 
United States of America. 

Appendix 3 

[Administration of Jimmy Carter, 1978] 

National Commission on the International Year of the Child, 1979 

{Executive Order 12053. April 14, 1978) 

By virtue of the authority vested in me by the Constitution of the United States 
of America, in accordance with the Federal Advisory Committee Act (5 U.S.C. 
App. I) and the United Nations General Assembly resolution of December 21, 
1976 which designated the year 1979 as the International Year of the Child, and 
as President of the United States of America, in order to provide for the observance 
of the International Year of the Child within tlie United States, it is hereby 
ordered as follows: 

Section 1. Establishment of Commission, (a) There is hereby established the 
National Commission on the International Year of the Child, 1979, hereafter 
referred to as the Commission. 

(b) The Commission shall be composed of not more than 25 person? appointed 
by the President from among citizens in private life. The President shall designate 
the Chairman and two Vice Chairmen. 

(c) The President of the Senate and the Speaker of the House of Representatives 
are invited to designate two Members of each House to serve on the Commission. 



27 

Sec. 2. Functions of the Commission, (a) The Commission shall plan for and 
promote the national observance in the United States of the year 1979 as the 
International Year of the Child. The Commission shall coordinate it^ efforts with 
local, State, national, and international organizations, including the United 
Nations Children's Fund (UNICEF). 

(b) In promoting this observance, the Commission shall foster within the United 
States a better understanding of the special needs of children. In particular, the 
Commission shall give special attention to the health, education, social environ- 
ment, physical and emotional development, and legal rights and needs of children 
that are unique to them as children. 

(c) The Commission shall keep informed of activities by organizations and 
groups in the United States and abroad in observance of the Year. The Commis- 
sion shall consult with, and stimulate activities and programs through, community, 
civic. State, regional, national Federal and international organizations. 

(d) The Commission ma}^ conduct studies, inquiries, hearings and meetings as it 
deems necessary. It may assemble and disseminate information, issue reports and 
other publications. It may also coordinate, sponsor, or oversee projects, studies, 
events and other activities that it deems necessary or desirable for the observance 
of 1979 as the International Year of the Child. 

(e) The Commission shall make recommendations to the President on national 
policies for improving the well-being of children; shall issue periodic reports on 
discrete areas of the rights and needs of children; and shall submit, no later than 
November 30, 1978, an interim report to the President on its w^ork and tentative 
recommendations. 

Sec. 3. Resources, Assistance, and Cooperation, (a) The Commission maj' estab- 
lish subcommittees. Private citizens who are not members of the Commission may 
be included as members of subcommittees. 

(b) The Commission may request any Executive agenc}^ to furnish such infor- 
mation, advice, services, and funds as may be useful for the fulfillment of the Com- 
mission's functions under this order. Each such agency is authorized, to the extent 
permitted by law and within the limits of available funds, to furnish such in- 
formation, advice, services, and funds to the Commission upon request of the 
Chairman of the Commission. 

(c) The Commission is authorized to appoint and fix the compensation of a 
staff and such other persons as maj^ be necessary to enable it to carry out its 
functions. The Commission maj^ obtain services in accordance with the provisions 
of Section 3109 of Title 5 of the United States Code, to the extent funds are 
available therefore. 

(d) Each member of the Commission and its subcommittees may receive, to 
the extent permitted by law, compensation for each day he or she is engaged 
officially in meetings of the Commission or its subcommittees at a rate not to 
exceed the daily rate now or hereafter prescribed by law for GS-15 of the General 
Schedule; and, may also receive travel expenses, including per diem in lieu of 
subsistence, as authorized by law (5 U.S.C. 5702 and 5703) for persons in the 
government service employed intermittent!}'. 

Sec. 4. Coordination, (a) The heads of Executive agencies shall designate an 
agency representative for purposes of coordinating agency support for the na- 
tional observance of the International Year of the Child, 1979. The Co-Chairmen, 
designated by the Secretaries of State and Health, Education, and Welfare, of the 
Interagency Committee for the International Year of the Child should act as 
advisers to, and coordinate activities with, the Chairman of the Commission. 

(b) The General Services Administration shall provide administrators services, 
facilities, and support to the Commission on a reimbursable basis. 

(c) The functions of the President under the Federal Advisory Committee Act 
(5 U.S.C. App. I), except that of reporting annually to the Congi-ess, which are 
applicable to the Commission, shall be performed by the Administrator of General 
Services as provided by Executive Order No. 12024 of December 1, 1977. 

Sec. 5. Final Report and Termination. The Commission shall conclude its work 
and submit a final report to the President, including its recommendations for 
improving the well-being of children, at least 30 days prior to its termination. 
The Commission shall terminate on April 1, 1979. 

Jimmy Carter. 
The White House, April 14, 1978. 
[Filed with the Office of the Federal Register, 12:07 p.m., April 14, 1978] 



■28 

Appendix 4 

lAdminiatration of Jimmy Carter, 1978] 

National Commission on the International Year of the Child, 1979 

(Appointment of 23 Members. June 28, 1978) 

The President today announced 23 persons whom he will appoint as members 
of the National Commission on the International Year of the Child, 1979. They 
are: 
Marjorie C. Benton, of Evanston, 111., active in civic aflFairs and currently serving 

as U.S. Alternate Representative to the 32nd Session of the United Nations 

General Assembly; 
Unita Blackwell, mayor of Mayersville, Miss. ; 
Eddie Lee Brandon, of Aurora, Colo., chairman of the board of directors of Child 

Opportunity Programs; 
Jose A. Cardenas, of San Antonio, Tex., executive director of the Intercultural 

Develpoment Research Association; 
Bill Cosby, the comedian and actor, active in children's causes; 
Marian Wright Edelman, founder of the Washington Research Project, which 

became the Children's Defense Fund in 1973; 
Rev. Austin Ford, director of a downtown community center, Emmaus House, 

in Atlanta; 
Mrs. Orville L. (Jane) Freeman, a member of the national board of directors of 

the Girl Scouts of America; 
Frederick C. Green, professor of child health and development at George Wash- 
ington University School of Medicine and associate director of Children's 

Hospital National Medical Center; 
Robert L. Green, dean of the College of Urban Development at Michigan State 

University ; 
Carroll M. Hutton, of Highland, Mich., director of the United Auto Workers 

Education Department; 
Bok-Lim C. Kim, of Champaign, 111. associate professor of social work at the 

University of Illinois; 
Gordon J. Klopf, of New York City, provost and dean of the faculties at Bank 

Street College of Education; 
Sherill Koski, of Iron, Minn., national youth chairman for the March of Dimes 

and member of the Task Force for Maternal and Infant Health Care for Minor- 
ities and the Poor; 
Rev. Eileen W. Linder, of Alpine, N.J., staff associate for youth concerns in the 

National Council of Churches' Division of Church and Society; 
Steven A. Minter, of Shaker Heights, Ohio, program officer for the Cleveland 

Foundation, handhng grants in health and social services; 
Judith D. Moyers, of Garden City, N. Y., a member of the board of trustees of the 

State University of New York and a founding director of Educational Products 

Information Exchange Institute; 
Marie M. Oser, of Houston, Tex., founder and executive director of Texas Child 

Care '76, Inc.; 
Lola Redford, of Provo, Utah, president of the board of directors of Consumer 

Action Now; 
Winona E. Sample, of Santa Clara, Calif., chief of the Indian health section for the 

California Department of Health; 
Nancy Spears, of Auburn, Ala., a former kindergarten teacher and active in educa- 
tional and community development activities in Auburn; 
Mario Thomas, the actress, also honorary chairwoman of the Children's Television 

Project of the Educational Foundation of American Women in Radio and 

Television; 
Carol H. Tice, of Ann Arbor, Mich., project director of Teaching-Learning Com- 
munities for the Elementary and Secondary Education Association. 



29 

[Administration of Jimmy Carter, 1978] 

International Year of the Child, 1979 

(Remarks on U.S. Participation in the Program. June 28, 1978) 

Tlie President. This afternoon, as far as the United States of Ainerica is con- 
cerned, we're beginning to emphasize and hopefully even to drainulize our own 
commitment to making the International Year of the Child a success. 

In December of 1976, the United Nations passed a resolution setting aside a 
special period for a worldwide assessment of the problems, thp needs, the oppor- 
tunities of children. There are V/o billion children in the world. And although our 
own country has been blessed with, I'd say, at least adequate material needs to 
make our lives certainly more pleasant and more prosperous than most, even in 
the United States we have serious problems among our children. 

We had, last 3'ear, a million children whose rights were abused, who sufTered 
physical abuse from their parents. And I don't think there's an adequate under- 
standing yet in our societal structure of this devastating demonstration of care- 
lessness or cruelty, quite often perpetrated against a young person who has very 
little voice to express pain or suffering or displeasure. 

In our rich country, we have 10 million children who have never had any 
medical care at all, and about half the children in this countrj' have never seen 
a dentist. 

I believe that most Americans are unaware of these few statistics. And I would 
hope that next year, as the world focuses its attention upon children, that all of us 
could become much more knowledgeable about the need, much more wiUing to 
assume responsibility for correcting and meeting those needs, and that we might 
in a positive way assess the unique opportunity to broaden the horizon of growth 
and enjoyment and the productivity of our children's lives, both now and in the 
future. 

I've asked Jean Young, Mrs. Andrew Young, to be the chairman of the Amer- 
ican committee for the International Year of the Child. She's in a special place, 
associated intimately with the families of representatives of almost every nation 
on Earth. She's a mother herself. Her husband and she have been involved in the 
correction of a very serious deprivation of rights because of racial discrimination. 
And I think she has both the knowledge, the influence, the prestige, the courage, 
and the commitment to lead our own effort here in the United States well and 
effectively. 

I'll be working closely with this group and hope to add the prestige and the in- 
fluence of the Presidency itself to making this a successful effort. 

We will be eager to help others, children in nations not quite so blessed with 
the material benefits of life in this next year. This effort will encompass almost 
every aspect of humanitarian service. Working through UNICEF and other 
United Nations agencies, through the leaders of other nations, I think we can 
enhance the opportunity for better clothing, housing, food, medical care, educa- 
tion, and the protection against suffering on the part of children in all nations. 

So, I'm very eager to be a part of it. It's a sobering prospect to know that per- 
haps once in a lifetime we have an opportunity to focus attention on such a 
neglected group in the world's population. 

And I for one, along with Jean Young, the Commission members, and I hope 
you and all the people in our Nation, will help the United States to set an example 
of a country whose actions can be equal to the bigness of our hearts and whose 
minds will be attuned to the analysis of problems and the resolution or solution 
of them. 

I want to thank all of you for coming here this afternoon to begin preparations 
to make 1979 a successful period in the study and enhancement of the lives of 
children everywhere. 

Thank you very much. 

Mrs. Young. Mr. President, distinguished guests and visitors: 



I 



30 

We are gathered here representing many facets of America. Our common bond 
is our love and concern for children. During International Year of the Child, we 
want to affirm children. The needs that you have so vividh^ portrayed are diverse 
and intense within the world arena. Within our own Nation, the needs are complex 
and difficult. But if we affirm children, we are on the road to effecting change. 

Children are resilient, tenacious, and adaptable. Many survive in the most 
deplorable conditions. Thej^^ are also vulnerable, defenseless, and powerless. 
With a little help from us, they can develop into the beautiful, loving, confident, 
contributing human beings they were meant to be. 

Mr. President, the commitment and sensitivity that you have expressed can 
help this to happen along, of course, with the cooperation of all the concerned 
organizations, the governmental agencies, and the dedicated private citizens 
throughout this Nation. 

Certainly, if we mustered the mighty forces of this great Nation to protect the 
tiny snail darter, certainly our court systems can protect our most valuable 
natural resource, our children. As the entire world is focusing on children, we 
call on all the voices of concern in every community throughout this Nation to 
examine itself, determine the needs of its children, and seek remedies through all 
resources available — whether private, corporate, or governmental. 

As we affirm children, enjo}' them, listen to voices of concern, seek solutions, 
we must not forget the most important voice in all, the voice of our children 
themselves. Regina and Scott, please come forward and share with us a couple 
of the thousands of letters expressing the concerns of the children of this country. 

Mr. President, would you come forward? 

Scott Higell. "Dear Sir, I am just saying one thing. I wish that all the children in 
the w^hole world would have a good parent and a nice home and have peace. 
Sincerely yours, Chucky D. Perry." 

Regina Higgins. ''Dear Sir, our class is talking a lot about the world and peace. 
W^e want to know how to get it. Your friend, Roxanna Floris.'' 

Mrs. Young. Thank you verj^ much. 

The President. I want all of you to go to work, too. We can't do it just for 
the Commission. So, we're all in the same boat. We're all partners in a very worthy 
concern — [inaudible] — for our country and for a better life throughout the world. 

Senator Sparkman just came in. I wanted to recognize him. Senator, would 
you stand up? Virginia — thank you very much — and Congresswoman Virginia 
Smith. We are very eager and pleased to have the Members of Congress partici- 
pate thoroughly, because there could not possiblj^ be a more representative group. 
And their voice can be heard almost immediately over the country collectively, 
and they can also give us what these children have just given us, a very good 
feedback from the children around the Nation. We're not just teachers but we are 
also students. 

Both these letters, I notice, express the children's hope for peace, which is 
obviously the prime hope of all of us. 

Thank you very much. 

Note. The President spoke at 1:35 p.m. in the Rose Garden at the White 
House. 

The Weekly Compilation of Presidential Documents, Volume 14, Number 2G. 



31 

APPKNDIX 5 

[LEA A Newsletter, May 19781 
United Nations Told 'Protect Child's Rights' 

The United Nations General Assembly has proclaimed 1979 the International 
Year of the Child (lYC) and called upon its member states to renew their com- 
mitment to improving the status of children. 

John M. Rector, Administrator of LEAA's Office of Juvenile Justice and 
Delinquency Prevention (OJJDP), has been appointed by Attorney General 
Griffin B. Bell to serve as the official Department of Justice lYC representative. 

Noting his strong support for the objectives of the lYC, the Attorney General 
directed that the Justice Department's observance lead to significant improve- 
ments in the rights and status of young people. 

In his capacity as lYC representative, Mr. Rector will sponsor and coordinate 
all Department activities which support the lYC. 

LANDMARK COMMITMENT 

The year 1979 will mark the 20th anniversary of the United Nations Declar- 
ation of the Rights of the Child, a landmark international commitment to the 
protection and improvement of the rights of all children. One important purpose 
of the lYC is to reaffirm the intent of that Declaration. 

"The lYC is to be a year of action rather than discussion" Mr. Rector said. 
He noted that there will be no large scale internatioDal conference as has been the 
case with other specially designated years. 

"Instead," he said, "the main objective of the lYC is to increase significantly 
the number and quality of services available for young people." 

All participating countries have been asked to review their policies and pro- 
grams affecting children and adopt specific measures to benefit children. 

FOCUS ON NEEDS 

"The focus of activities is the child as an individual with special needs and 
rights," said Mr. Rector. "While the important role of the family is recognized, 
the child is not to be regarded as merely an appendage or extension of the family 
unit," he emphasized. 

Mr. Rector is a member of the lYC Interagency Committee and its executive 
steering committee. The Interagency Committee is composed of top level repre- 
sentatives of 16 Federal departments and agencies and is responsible for developing 
and supporting lYC activities within the Federal government. 

The Department's observance of the lYC will focus on four issues: children 
in custody; children and youths as victims of violence; sexual exploitation of 
children and youth; and, the effects of advertising and electronic media pro- 
gramming on violence and drug use among children and youth. 

RESPONSIBILITY TO PROTECT 

In addition to these four specific issues, the Department of Justice, and OJJDP 
in particular, have special interests and responsibilities in the broader issues of 
protecting and improving children's rights. 

OJJDP will be providing the funds necessary to enable the State Department 
to conduct an international survey and analysis of children's rights, with special 
attention to the rights of children in questions of custody and institutionalization. 

The litigation program of the Justice Department's Civil Rights Division now 
includes 23 cases designed to vindicate the rights of persons institutionalized for 
the purpose of care and treatment. 

Two cases have focused on the rights of juveniles not to be incarcerated in 
jails. In 1979, OJJDP will sponsor a judicial implementation program to insure 
that orders of the court relating to children in custody are carried out. 



32 

OTHER ACTIVITIES PLANNED 

OJJDP will work in cooperation with the Civil Rights Division in this and 
other areas related to children's rights. Other Justice Department agencies have 
underway or are planning additional lYC-related activities. 

For example, the Drug Enforcement Administration (DEA) sponsors school 
drug abuse prevention policy development conferences for local and State officials 
that encourage schools to cooperate with criminal justice agencies and the 
community. 

DEA also published drug abuse prevention materials, including a coloring 
book for very young children that has been translated by other countries for 
us© abroad. 

INMATES HELP CHILDREN 

The Bureau of Prisons has joined with Children's Television Workshop to 
co-sponsor the Seasame Street Prison Project in which prison inmates work as 
volunteers helping educate and entertain children visiting inmates. 

A documentary film, "Seasame Street Goes to Prison," was produced and is 
available to State and local governments interested in developing similar programs. 

Throughout the International Year of the Child OJJDP will be the lYC in- 
formation clearinghouse for the Justice Department. 

International Year of the Child 1979 

FOUR ISSUES 

Children in Custody 

In passing the Juvenile Justice and Delinquency Prevention Act and its recent 
amendments, Congress established as a top priority the ending of wholesale and 
inequitable institutionalization of juveniles. 

Specifically, the Act requires that juveniles be separated from adult offenders 
in correctional fiacilities and that certain categories of non-offenders (dependent 
and neglected children and status offenders) be removed from detention and 
correctional institutions altogether. 

The Act reflects the judgement of most professionals in the juvenile dehnquency 
field, as well as concerned citizens, that far too many juveniles are locked up. 

Although some youthful offenders must be removed from their homes, detention 
and incarceration should be reserved for those who commit serious, usually violent 
crime, not those who are classified as non-offenders. 

A Children in Custody Task Group was established within OJJDP and soon 
will be announcing a three-pronged attack on the problem. Plans are to provide: 

Supplemental funds to states participating in the Formula Grant program for 
projects geared to deinstitutionalize non-offenders. 

Special assistance to state juvenile justice and delinquency advisory groups to 
help them monitor the deinstitutionalization and separation mandates of the Act. 

Identification and "showcasing" of the efforts of a small number of states that 
have successfully deinstitutionalized non-offenders. 

Also, OJJDP is sponsoring 11 special action projects which in a period of 20 
months have diverted about 18,000 status offenders out of the traditional juvenile 
justice system. 

The office has recently announced a $30 million restitution program for adjudi- 
cated dehnquents designed to develop sentencing alternatives in the juvenile 
court. There will be 30-40 separate projects funded under this initiative. 

Children and Youth as Victims of Violence 

Adolescents are the most frequent victims of violence. 

Victimization studies sponsored by LEAA have shown that youth aged 12 to 
19 years are consistently victimized at a rate higher than the general population. 

A study sponsored by OJJDP on the problem of gang violence estimated that 
in six major cities alone, gang membership numbered some 81,500. The study 
indicates that approximately 72 percent of the victims are young people aged 10 
to 21. 

In some cities gang members commit one-third of all violent crime attributed to 
juveniles. 

And violence has spilled over into the nation's schools where students of all 
ages are the victims of exploitation, intimidation and assault. 



33 

To respond to this problem OJJDP, in conjunction with the Department of 
Health, Education, and Welfare, has initiated a multi-milhon dollar, two-part 
program. 

The first part — the School Team Approach for Preventing and Reducing 
Crime and Disruptive Behavior in the Schools — provides training and support 
to local adult/youth teams to help them respond to the various types of disruption. 

The second part — the School Crime Intervention Component of the Youth 
Advocacy Teachers Crops Programs — trains school personnel to deal more effec- 
tively with the problems of troubled youth. 

The goal is to demonstrate the degree to which student-based intervention 
initiatives can reduce the incidence of crime, violence and disruption in schools. 

Duiing the coming year, the office will issue a major topical report on children 
and youth as victims of violence, and conduct an anal3'sis of j'outh victimization 
data as compared to the FBI's Uniform Crime Reports and other data. 

The office plans to glean basic information about the extent of juvenile crime, 
and children and youth victimization from the highly technical statistical reports, 
and distribute it to citizen and community groups to help them plan effective 
community-level response techniques. 

Sexual Exploitation of Children and Youth 

OJJDP's National Institute for Juvenile Justice and Delinquency Prevention 
conducts studies and makes assessments of sexual abuse of children and youth. 

This includes abuse by family members as well as juvenile prostitution and 
pornography. 

The gross underreporting of child abuse cases, including sexual exploitation, 
continues to hamper efforts to deal with the problem. 

Little is known about who the young are, how they become involved, and how 
they are treated by the justice and social services systems. 

There are, however, indications that of the approximately one million runaways 
per year, many are running from situations of sexual and other forms of abuse. 
And, many run to urban centers where they fall victim to child prostitution and 
pornography operations. 

In the amended Act, Congress expanded funding for the Runaway Youth Act 
and included homeless youth under its provisions. 

The purpose was to insure not only development of programs to reduce sex- 
ual exploitation of 3'oung people, but also that adequate resources are available 
for the most frequent victims — the runaways. 

Senator Birch Bayh, author of the Act, emphasized the importance of fo- 
cusing on public attitudes, policies, and practices that allow such exploitation to 
take place, rather than on the prosecution of those exploiting children. 

OJJDP is reviewing several proposals to study the various aspects of sexual ex- 
ploitation of children and provide treatment and other support services to the 
juvenile victim. 

As part of the lYC, additional action projects will be considered for funding. 

Effects of Advertising and Media Programming on Young People 

There are one or more television sets in 96 percent of American homes. And 
they operate on an average of six hours per day, seven days a week. 

In recent congressional hearings on school violence, it was reported that the 
average American child spends more time in front of the family TV than in a 
classroom. 

Coupled with the amount of violence in television programming, the persua- 
sive power of television advertising, and television's captive hold on the minds of 
young people, this amount of exposure is cause for alarm. 

Citizen groups have met with only limited success in their efforts to persuade 
the Federal Communications and Trade Commissions to improve the quality 
of television programs and advertising. 

A scientific advisory committee to the Surgeon General studied television's 
impact on social behavior, and, describing its findings as "only tentative," re- 
ported a correlation between television and aggression among young people as 
well as a correlation between high violence content and program popularity. 

In amending the Juvenile Justice Act, Congress determined that such "tenta- 
tive" findings were insufficient and therefore directed OJJDP to assess the role of 
media violence in delinquency. 

Therefore, as part of its lYC activities, the office will take a practical look 
at the issue. Special efforts will be made to involve young people in the assessment. 

o 



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